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iHE  QUESTION  OF 
ABORIGINES 

IN  THE  LAW  AND  PRACTICE  OF  NATIONS 


INCLUDING  ^''^s^^  ?\    ^.s,s\^ 

A  COLLECTION  OF  AUTHORITIES  ~  ~     ^'  ^"^  "   " 

AND  DOCUMENTS 


By 

AIJ>1IEUS  HENRY  SNOW 


Pi 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1919 


GIFT   OF 


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THE  QUESTION  OF 
ABORIGINES 

IN  THE  LAW  AND  PRACTICE  OF  NATIONS 


INCLUDING 

A  COLLECTION  OF  AUTHORITIES 

AND  DOCUMENTS 


By 

ALPHEUS  HENRY  SNOW 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1919 


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PREFATOKY  NOTE. 

The  following  is  submitted  to  the  Department  of  State,  pursuant 
to  a  request  made  by  letter  dated  April  29,  1918,  that  the  author 
should  "  undertake  the  task  of  collecting,  arranging,  and,  so  far  as 
[he]  may  deem  necessary,  editing  the  authorities  and  documents 
relating  to  the  subject  of  'Aborigines  in  the  Law  and  Practice  of 
Nations.' " 

The  author  has  discovered  no  treatise  on  the  question,  nor  even  any 
chapters  in  any  book  on  international  law  or  the  law  of  colonies,  to 
serve  as  a  model  or  guide.  He  has  therefore  been  compelled  to  de- 
velop the  subject  and  arrange  the  authorities  and  documents  accord- 
ing to  his  own  judgment. 

December  20, 1918. 

3 


41^t30 


TABLE  OF  CONTENTS. 


Page. 

Chapter  I.  Definition  of  aborigines 7 

II.  Historical  introduction 16 

III.  Aborigines  as  the  wards  of  the  State  which  exercises  sovereignty- 
over  them : 24 

IV.  The  relation  between  the  power  over  aboriginal  tribes  and  the 

power  over  colonies  generally 38 

V.  The  relation  between  the  power  over  aboriginal  tribes  and  the 

power  over  colonies  generally  (continued) 55 

""  VI.  The  rights  of  aborigines  as  respects  the  land  inhabited  by  them. .         73 
'  VII.  The  rights  of  aborigines  to  personal  liberty  and  personal  property. .         85 

VIII.  The  duties  of  civilized  States  as  guardians  of  aborigines 107 

/  IX.  The  legal  effect  of  agreements  between  civilized  States  or  their 

citizens  and  aboriginal  tribes 117 

X.  The  founding  of  the  independent  State  of  the  Congo  and  its  effect 

on  the  law  of  nations  regarding  aborigines 129 

XI.  The  institution  by  the  Berlin-African  Conference  of  a  middle- 
African  zone  of  international  jurisdiction,  and  the  effect  of  this 

action  on  the  law  of  nations  regarding  aborigines 145 

XII.  The  failure  of  the  proposals  in  the  Berlin- African  Conference  f'^r 
neutralization  and  surveillance  of  the  middle-African  zone  of 
international  jurisdiction  as  affecting  the  development  of  the 
law  of  nations  regarding  aborigines 155 

XIII.  International  action  since  the  Berlin-African  Conference,  affecting 

the  law  of  nations  regarding  aborigines 170 

XIV.  The  doctrine  of  "intervention  for  humanity"  and  its  effect  on 

the  development  of  the  law  of  nations  regarding  aborigines 187 

XV.  The  establishment  of  "the  triple  principle"  by  the  action  of 
international  conferences  in  the  case  of  Morocco,  and  the 
effect  of  this  action  on  the  development  of  the  law  of  nations 

regarding  aborigines 202 

5 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  AND  PRACTICE  OF  NATIONS. 


CHAPTEK  I. 

DEFINITION  OF  ABORIGINES. 

So  far  as  the  author  of  this  report  has  been  able  to  discover,  no 
definition  of  the  word  "  aborigines  "  as  a  term  of  the  law  and  prac- 
tice of  nations  has  been  made  by  any  text- writer  of  recognized  stand- 
ing, or  by  any  international  body  whose  usage  would  determine  its 
meaning.  It  therefore  becomes  necessary  to  formulate  such  a  defini- 
tion from  an  examination  of  the  meaning  attached  to  the  word  by 
lexicographers  and  by  a  study  of  the  context  of  public  documents  of 
recognized  authority  in  the  law  and  practice  of  nations  in  which 
the  word  is  used. 

The  following  definition,  formulated  in  that  manner,  is  adopted 
for  the  purposes  of  this  report: 

Aborigines  are  the  members  of  uncivilized  tribes  which  inhabit 
a  region  at  the  time  a  civilized  State  extends  its  sovereignty  over 
the  region,  and  which  have  so  inhabited  from  time  immemorial ;  and 
also  the  uncivilized  descendants  of  such  persons  dwelling  in  the 
region. 

As  a  term  of  the  law  and  practice  of  nations,  "  aborigines  "  is  pri- 
marily a  term  of  that  division  of  the  general  public  law  which  is  not 
strictly  national  or  strictly  international,  and  which  is  concerned 
with  the  relations  between  a  State  recognized  as  one  of  the  civilized 
States  and  uncivilized  tribes  under  its  sovereignty.  Aborigines 
are  distinguished  from  "  colonists,"  the  latter  term  including  the 
citizens  of  civilized  States  who  settle  in  the  region.  The  relations 
of  aborigines  with  each  other,  with  the  colonists,  and  with  the  col- 
onizing State  are  necessarily  subject  to  a  special  regime  established 
by  the  colonizing  State  for  the  purpose  of  fitting  the  aborigines  for 
civilization,  and  opening  the  resources  of  the  land  to  the  use  of  the 
civilized  world.  All  civilized  States  which  assume  sovereignty  over 
regions  inhabited  by  aborigines  undertake  a  civilizing  work  which, 
while  varying  in  its  details,  is  identical  in  its  general  nature  and  in 
the  fundamental  principles  to  be  applied.  Hence  the  dealings  of 
individual  civilized  States  with  aborigines  under  their  respective 
sovereignties  are  matters  of  common  interest  to  all  nations,  and  the 


8  ...  THE  QV^XlO^l  QF  ABORIGINES  IN   THE  LAW   OF   NATIONS. 

lAV.aiid..pi:aAtice  pf,  nations  properly  concerns  itself  with  the  com- 
iiaa'^iiSiii^t'etmitibriai  -ai^ects  of  such  national  action. 

(a)  Meaning  of  the  word  as  shown  hy  an  examination  of  lexicons. 

The  word  "  aborigines  "  is  of  course  the  Latin  word  aborigines 
taken  over  without  change  into  the  English  language.  The  history 
and  meaning  of  the  word  in  Latin  are  given  in  the  Latin-English 
Lexicon  by  E.  A.  Andrews  as  follows : 

The  Aborigines,  the  nation  which,  previous  to  historical  record,  descended 
from  the  Apennines,  and  advancing  from  Carseoli  and  Reate  into  the  plain 
drove  out  the  Siculi,  the  ancestors  of  the  Romans.  To  them,  as  not  of  Greek 
origin,  belongs  the  un-Greek  element  in  tlie  Latin  language.  Cf.  Miill.  Etrusk. 
1.16  sq. ;  Cic.  Rep.  2.3 ;  Sail.  Cat.  6.  *  *  *  Pliny  also  uses  it  as  an  appella- 
tive, *  *  *  the  original  inhabitants,  ancestors,  4.21.36.  Its  etym.  is  doubtful. 
It  is  commonly  derived  from  ab-oiigo;  but,  ace.  to  Aur.  Victor,  it  is  either  of 
Greek  origin,  from  dwo  and  opr],  those  who  came  from  the  mountains,  or  fr. 
ah-errare,  the  wanderers ;  which  last  derivation  Fest.  also,  p.  16,  approves. 

Webster's  Dictionary  thus  defines  the  word: 

Aborigines  (Lat.  Aborigines,  from  ab  and  origo,  especially  the  first  inhabi- 
tants of  Latium,  those  who  originally  (ab  origine)  inhabited  Latium  or  Italy). 
The  first  inhabitants  of  a  country. 

The  same  dictionary  defines  "  aboriginal,"  used  as  a  substantive,  as 
'*an  original  inhabitant;  one  of  the  aborigines";  and  the  adjective 
"  aboriginal  "  as  meaning  "  first ;  original,  primitive ;  as  the  aborig- 
inal tribes  of  America." 

The  Century  Dictionary  thus  defines  "  aborigines  " : 

The  first  inhabitants  of  a  country,  applied  especially  to  the  aboriginal  inhab- 
itants of  Latium,  the  ancestors  of  the  Roman  people;  *  *  *  the  primitive 
inhabitants  of  a  country ;  the  people  living  in  a  country  at  the  earliest  period 
of  which  anything  is  known. 

The  same  dictionary  defines  the  adjective  "  aboriginal "  as  "per- 
taining to  aborigines ;  hence,  primitive,  simple,  unsophisticated." 

The  folloAving  are  meanings  applied  to  the  word  and  some  of  its 
derivatives  by  the  Oxford  Dictionary : 

Abotngines.  A  purely  Latin  word,  applied  to  those  who  were  believed  to 
have  been  the  inhabitants  of  a  country  ab  origine,  i.  e.,  from  the  begin- 
ning   *    *     *^ 

1.  The  original  inhabitants  of  a  country ;  originally,  the  race  of  the  first  pos- 
sessors of  Italy  and  Greece,  afterwards  extended  to  races  supposed  to  be  the 
first  or  original  occupants  of  other  countries.' 

2.  The  natives  found  in  possession  of  a  country  by  Europeans  who  have  gone 
•thither  as  colonists. 

Aborigen,  Aborigin,  a  form  occasionally  occurring  as  a  singular  to  aborigines, 
which  has  no  singular  in  L.  *  *  *.  But  the  tendency  is  to  treat  aborigines 
as  a  purely  Eng.  word,  and  make  the  singular  aborigine. 

Aboriginal,  A,  adj.  1.  First  or  earliest  so  far  as  history  or  science  gives  rec- 
ord; primitive;  strictly  native;  indigenous.  Used  both  of  races  and  natural 
features  of  various  lands. 


THE  QUESTION   OF  ABOBIGINES  IN   THE  LAW   OF   NATIONS.  9 

2.  (Spec.)  Dwelling  in  any  country  before  the  arrival  of  later  (European) 
colonists. 

3.  Of  or  pertaining  to  aborigines,  to  the  earliest  known  inhabitants,  or  to 
native  races. 

B.  subs,  (with  pi.).     An  original  inhabitant  of  any  land,  now  usually  as  dis- 
tinguished from  subsequent  European  colonists. 
Ahoriginalism.    The  due  recognition  of  native  races. 

The  New  Standard  Dictionary  (ed.  of  1913)  gives  the  following 
definitions : 

Aborigines.  The  original  or  earliest  known  inhabitants  of  a  country.  *  *  ♦ 
L.  the  primeval  Romans. 

Aboriginal.  Of  or  pertaining  to  the  aborigines;  native  to  the  soil;  savage  in 
respect  of  culture ;  indigenous ;  primitive ;  hence  simple,  unsophisticated. 

Ahoriginalism.  The  doctrine  that  savage  races  may  be  civilized,  and  hence 
should  be  respected. 

Ahorigine  (rare).  One  of  the  aborigines. 

Ahorigen.  Singular  form  of  aborigines,  which  in  Latin  has  no  singular;  as- 
sumed from  regarding  the  word  as  English,  and  now  often  used. 

(h)  Meanhig  of  the  ivord  as  shown  hy  oificial  docwments. 

From  the  foregoing  survey  of  the  work  of  the  lexicographers  it  is 
evident  that  the  lexicons  furnish  little  aid  toward  the  formulation 
of  a  scientific  definition  of  aborigines  as  a  term  of  the  law  and 
practice  of  nations.  It  therefore  becomes  necessary  to  study  the 
usage  of  the  word  in  legal  and  political  literature.  Such  a  study 
apparently  reveals  that  the  establishment  of  the  word  as  a  legal  and 
l^olitical  term  with  a  precise  meaning  occurred  in  the  period  between 
1835  and  1837,  under  the  following  circumstances : 

Through  the  efforts  of  a  series  of  reform  organizations  in  Great 
Britain,  the  first  of  w^hich  began  its  operations  in  1791,  the  African 
slave  trade  was  prohibited  to  the  citizens  of  Great  Britain  by  act  of 
Parliament  in  1807,  and  in  1833  African  slavery  was  abolished  in 
the  British  colonies.  During  this  long  period  of  agitation  these 
reformers  had  been  led  to  study  the  whole  question  of  the  contact 
of  the  civilized  States  with  the  uncivilized  races.  Great  Britain  was 
exercising  sovereignty  over  regions  inhabited  by  uncivilized  races 
in  Canada,  South  America,  Africa,  Australia,  New  Zealand,  and  the 
islands  of  the  Pacific.  Other  European  States,  the  United  States, 
and  the  States  of  South  America  exercised  similar  sovereignty.  In 
spite  of  the  varying  details  in  dealing  with  each  of  the  uncivilized 
tribes,  it  was  perceived  that  the  problem  was  one  of  the  contact  of 
civilization  with  uncivilization ;  that  there  were  certain  general  prin- 
ciples universally  applicable,  and  that  the  question  was  in  some 
respects  and  to  some  extent  one  of  common  interest  to  all  nations. 

Influenced  by  this  broader  aspect  of  the  question,  a  part  of  the 
anti-slavery  group  in  1835  separated  itself  from  the  rest,  and  formed 


10        THE   QUESTION    OF   ABORIGINES  IN    THE   LAW   OF    NATIONS. 

themselves  into  a  society  which  called  itself  the  British  and  Foreign 
Aborigines  Protection  Society,  the  remainder  continuing  their  gen- 
eral anti-slavery  propagandist  work  as  a  society  calling  itself  the 
British  and  Foreign  Anti-Slavery  Society.  These  two  societies  kept 
their  separate  identity  and  continuously  carried  on  their  work  on 
their  separate  lines  until  1909,  when  they  merged  into  one,  by  the 
name  of  the  British  Anti-Slavery  and  Aborigines  Protection  Society, 
which  still  exists. 

By  the  influence  of  the  Aborigines  Protection  Society  the  question 
of  aborigines  in  the  law  and  practice  of  nations  was  agitated  in 
1835  in  the  British  House  of  Commons,  and  largely  through  the  in- 
fluence of  Thomas  Fowell  Buxton,  who  was  a  member  of  the  House 
of  Commons  and  one  of  the  leaders  of  the  society,  a  select  committee 
on  the  subject  was  appointed.  After  taking  a  large  amount  of  evi- 
dence, this  committee,  which  received  the  name  of  the  Select  Com- 
mittee on  Aboriginal  Tribes,  made  its  report  in  1837.  Gladstone  was 
a  member  of  the  committee,  and  it  is  said  that  he  drafted  the  report. 

It  was  by  this  report,  apparently,  that  the  word  "  aborigines  "  re- 
ceived its  definite  sanction  as  a  term  of  the  law  and  practice  of 
nations.  In  judicial  decisions  and  diplomatic  and  legislative  docu- 
ments prior  to  that  time  the  word  is  used  sporadically  and  in  a  sense 
not  invariably,  though  generally  confined  to  uncivilized  persons  in- 
digenous to  the  soil  of  a  certain  region.  This  report  clearly  confined 
it,  as  a  legal  term,  to  this  sense. 

By  the  terms  of  the  resolution  of  the  House  of  Commons  the  com- 
mittee was  authorized  "to  consider  what  measures  ought  to  be 
adopted  with  regard  to  the  native  inhabitants  of  countries  where 
British  settlements  are  made,  and  to  the  neighboring  tribes,  in  order 
to  secure  to  them  the  due  observance  of  justice  and  the  protection  of 
their  rights,  to  promote  the  spread  of  civilization  among  them,  and 
to  lead  them  to  the  peaceful  and  voluntary  reception  of  the  Christian 
religion." 

In  the  second  paragraph  of  the  report  it  is  said : 

The  extent  of  the  question  will  be  best  comprehended  by  taking  a  survey  of 
the  globe,  and  'by  observing  over  how  much  of  its  surface  an  intercourse  with 
Britain  may  become  the  greatest  blessing,  or  the  heaviest  scourge.  It  will 
scarcely  be  denied  in  word  that,  as  an  enlightened  and  Christian  people,  we  are 
at  least  bound  to  do  to  the  inhabitants  of  other  lands,  whether  enlightened  or 
not,  as  we  should  in  similar  circumstances  desire  to  be  done  by ;  but  beyond  the 
obligations  of  common  honesty,  we  are  bound  by  two  considerations  with  regard 
to  the  uncivilized :  First,  that  of  the  ability  we  possess  to  confer  upon  them  the 
most  important  benefits ;  and  secondly,  that  of  their  inability  to  resist  any  en- 
croachments, however  unjust,  however  mischievous,  which  we  may  be  disposed 
to  make.  The  disparity  of  the  parties,  the  strength  of  the  one  and  the  incapac- 
ity of  the  other  to  enforce  the  observance  of  their  rights,  constitutes  a  new  and 
irresistible  appeal  to  our  compassionate  protection. 


THE   QUESTION   OF  ABORIGINES  IN   THE  LAW   OF   NATIONS.       11 

The  committee  recognized  that  the  question  of  aborigines  was  not 
a  mere  national  one,  but  was  one  common  to  all  colonizing  nations, 
and  virtuall}'  one  of  drawing  a  just  line  between  that  which  is  due 
to  aborigines  as  human  beings  and  original  occupants  of  the  soil  on 
the  one  part  and  that  which  is  due  to  the  civilized  world  on  the  other 
part,  and  especially  of  preventing  abuses  of  power  by  civilized  states 
and  their  citizens  as  respects  the  uncivilized  peoples.    Thus  it  is  said : 

It  is  not  too  much  to  say  that  the  intercourse  of  Europeans  in  general,  with- 
out any  exception  in  favor  of  the  subjects  of  Great  Britain,  has  been,  unless 
when  attended  by  missionary  exertions,  a  source  of  many  calamities  to  un- 
civilized nations.     Too  often,  their  territory  has  b^en  usurped,  their  property 
seized;   their   numbers   diminished,    their   character   debased,   the    spread   of 
civilization  impeded.    European  vices  and  diseases  have  been  introduced  among  / 
them,  and  they  have  been  familiarized  with  the  use  of  our  most  potent  in-  J 
struments  for  the  subtle  or  violent  destruction  of  human  life,  viz.,  brandy  and  \ 
gunpowder.     *     *     * 

It  is  difficult  to  form  an  estimate,  of  the  less  civilized  nations  liable  to  be 
influenced  for  good  or  for  evil  by  contact  and  intercourse  with  the  more 
civilized  nations  of  the  earth.  It  would  appear  that  the  barbarous  regions 
likely  to  be  more  immediately  affected  by  the  policy  of  Great  Britain  are  the 
south  and  west  of  Africa,  Australia,  the  islands  of  the  Pacific  Ocean,  a  very 
extensive  district  of  South  America  at  the  back  of  the  Essiquibo  settlement 
between  the  rivers  Orinoco  and  Amazon,  with  the  immense  tract  which  con- 
stitutes the  most  northerly  part  of  the  American  continent  and  stretches  from 
the  Pacific  to  the  Atlantic  Ocean. 

Throughout  the  first  part  of  the  report,  which  is  a  statement  of 
the  facts  relating  to  the  abuse  of  civilized  power,  brought  out  by  the 
evidence  taken  by  the  committee,  the  word  "  aborigines  "  is  not  used. 
Where  it  would  naturally  be  expected,  the  words  "savages,"  "bar- 
barous peoples,"  "  heathens,"  "  uncivilized  nations,"  "  tribes,"  "  native 
inhabitants,"  or  "natives"  are  used.  The  word  "aborigines"  first 
occurs  in  the  heading  of  the  second  part  of  the  statement  of  facts. 
This  heading  is  as  follows : 

Effects  of  fair  dealing,  combined  with  Christian  instruction,  on  aborigines. 

Under  this  heading,  the  opening  statement  reads : 

In  the  foregoing  survey  we  have  seen  the  desolating  effects  of  the  association 
of  unprincipled  Europeans  with  nations  in  a  ruder  state.  There  remains  a 
more  gratifying  subject  to  which  we  have  now  to  direct  our  attention — the 
effect  of  fair  dealing  and  of  Christian  instruction  upon  heathens.  The  instances 
are,  unhappily,  less  numerous  than  those  of  an  opposite  character,  but  they  are 
not  less  conclusive;  and  in  reviewing  the  evidence  before  us,  we  find  proof 
that  every  tribe  of  mankind  is  accessible  to  the  remedial  process  and  that  it 
has  actually  been  partially  applied  and  its  benefits  experienced  in  every  quarter 
of  the  world ;  so  that,  the  main  feature  of  the  case  before  us  being  the  ravages 
caused  by  Europeans,  enough  has  been  incidentally  disclosed  to  show  that 
those  nations  which  have  been  exposed  to  our  contamination  might,  during  the 
same  period,  have  been  led  forward  to  religion  and  civilization.  Independently 
of  the  obligations  of  conscience  to  impart  the  blessings  we  enjoy,  we  have 


12        THE   QUESTION    OF   ABORIGINES   IN   THE   LAW   OF   NATIONS. 

abundant  proof  that  it  is  greatly  for  our  advantage  to  have  dealings  with 
civilized  men  rather  than  with  barbarians.  Savages  are  dangerous  neighbors 
and  unprofitable  customers,  and  if  they  remain  as  degraded  denizens  of  our 
colonies  they  become  a  burden  upon  the  State. 

We  have  next  to  express  our  conviction  that  there  is  but  one  effectual  means 
of  staying  the  evils  we  have  occasioned,  and  of  imparting  the  blessings  of 
civilization,  and  that  is  the  propagation  of  Christianity,  together  with  the 
preservation,  for  the  time  to  come,  of  the  civil  rights  of  the  natives. 

We  have  seen  that  a  mere  ac(iuaintance  with  civilized  men  by  no  means 
prepares  savages  to  receive  Christianity,  and  that  kind  of  civilization  which 
alone  can  be  advantageous  to  them  or  ourselves.  *  *  *  We  further  find,  in 
the  evidence  before  us,  that  benevolent  attempts  have  been  made  to  instruct 
savages  in  the  arts  of  civilized  life,  for  the  purpose  of  improving  their  condition 
and  gradually  preparing  them  for  the  truths  of  the  Gospel,  and  that  these  at- 
tempts have  been  signally  unsuccessful.  *  *  *  So  complete,  indeed,  has  been 
the  failure  of  the  merely  civilizing  plan  with  various  tribes  of  Indians,  that 
intelligent  Americans  have  been  led  to  adopt  the  conclusion  that  it  is  necessary 
to  banish  the  Indians  from  the  neighborhood  of  the  white  population,  on  the 
supposition  that  they  are  not  capable  of  being  reclaimed  or  elevated  into  a 
civilized  or  well-ordered  community. 

This  was  not  the  opinion  of  William  Penn,  whose  conduct  toward  the  Indians 
has  been  deservedly  held  up  as  a  model  for  legislators,  and  who  "  notwith- 
standing he  purchased  their  lands "  by  an  equitable  treaty,  "  did  not  desire 
their  removal,"  but  "admitted  them  to  full  participation  in  the  benefit  and 
protection  of  the  laws,"  and  who  also  took  pains  to  promote  their  religious 
instruction,  and  to  render  the  intercourse  with  their  white  brethren  beneficial 
to  them.  That  the  good  which  he  contemplated  has  been  frustrated  by  many 
untoward  circumstances  we  are  aware,  but  we  do  not  therefore  doubt  the  feasi- 
bility of  producing  a  permanent  impression  upon  uncivilized  men.  We  consider 
that  the  true  plan  to  be  pursued  is  that  which  we  find  recommended  by  the 
Church  Missionary  Society,  in  their  instructions  to  two  of  their  emissaries : 

"  In  connection  with  the  preaching  of  the  gospel  you  will  not  overlook  its 
intimate  bearing  on  the  moral  habits  of  a  people.  *  *  *  Seek  to  apply  it 
to  the  common  occupation,  of  life ;  and  instead  of  waiting  to  civilize  them  be- 
fore you  instruct  them  in  the  truths  of  the  gospel,  or  to  convert  them  before 
you  aim  at  the  improvement  of  their  temporal  condition,  let  the  two  objects 
be  pursued  simultaneously." 

Following  the  statement  of  facts  the  committee  inserted  its  "  con- 
clusions." Holding  that  its  investigation  had  proved  that  "  the 
effect  of  European  intercourse  had  been,  upon  the  whole,  a  calamity 
on  the  heathen  and  savage  nations,"  it  urged  in  eloquent  language 
that  Great  Britain  should  make  itself  a  leader  in  the  movement  to 
make  the  contact  between  the  civilized  and  the  uncivilized  races  a 
benefit  to  both  and  a  means  of  increasing  the  general  civilization 
and  welfare. 

After  the  "  conclusions,"  the  committee  considered  under  the  head- 
ing of  "suggestions"  the  fundamental  principles  of  the  just  rela- 
tionship between  civilized  and  uncivilized  races  and  the  methods  and 
processes  suitable  for  carrying  these  principles  into  effect.  It  is 
in  the  text  of  these  "suggestions"  (which  in  the  nature  of  things 


THE  QXJESnON   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS.       13 

must  have  been  the  last  paper  drafted  by  the  committee),  that  the 
word  "  aborigines "  is  used  as  a  technical  term.  It  would  appear 
that  the  committee,  while  unable  to  agree  in  accepting  that  term 
during  the  main  part  of  its  deliberations,  had  found  it  so  necessary 
to  have  a  generic  term  applicable  to  the  uncivilized  natives  in  the 
colonies  of  all  civilized  States,  that  they  finally  agreed  to  sanction 
and  adopt  the  word  "  aborigines "  for  this  purpose. 

The  word  occurs  in  the  opening  paragraph  of  the  "suggestions," 
which  reads  as  follows : 

Having  thus  adverted  to  some  of  the  more  remarkable  of  those  incidents  by 
which  the  intercourse  between  the  British  colonies  and  the  aborigines  in  their 
vicinity  have  been  characterized,  it  remains  to  consider  how  the  recurrence  of 
similar  calamities  can  be  most  effectually  averted. 

It  is  obviously  difficult  to  combine  in  one  code  rules  to  govern  our  intercourse 
with  nations  standing  in  different  relationships  with  us.  Some  are  independent 
communities ;  others  are,  by  the  nature  of  treaties  or  the  force  of  circumstances, 
under  the  protection  of  Great  Britain,  and  yet  retain  their  own  laws  and 
usages ;  some  are  our  subjects,  and  have  no  laws  but  such  as  we  impose. 

To  this  variety  in  circumstances  must  be  added  a  variety  as  great  in  their 
moral  and  physical  condition.  They  are  found  in  all  grades  of  advancement, 
from  utter  barbarism  to  semi-civilization. 

To  propose  regulations  which  shall  apply  to  our  own  subjects  and  to  inde- 
pendent tribes,  to  those  emerging  from  barbarism  and  to  those  in  the  rudest 
state  of  nature,  is  a  task  from  which  your  committee  would  shrink,  were  it 
not  that  all  the  witnesses,  differing  as  they  do  upon  almost  every  other  topic, 
unite  in  ascribing  much  of  the  evil  to  the  uncertainty  and  vacillation  of  our 
policy.  Your  committee  can  not  too  forcibly  recommend  that  no  exertion 
should  be  spared  and  no  time  lost  in  distinctly  settling  and  declaring  the  prin- 
ciples which  shall  henceforth  guide  and  govern  our  intercourse  with  those 
vast  multitudes  of  uncivilized  men  who  may  suffer  in  the  greatest  degree  or  in 
the  greatest  degree  be  benefited  by  our  intercourse. 

The  regulations  which  we  would  suggest  for  that  purpose  are  either  general 
or  special ;  that  is.  they  either  extend  to  all  parts  of  the  globe  in  which  we  are 
brought  into  contact  with  uncivilized  tribes  or  they  apply  to  the  particular 
case  of  some  one  settlement.  In  the  first  place,  therefore,  we  will  advert  to 
these  general  regulations  which  we  have  to  suggest,  and  which  may  be  reduced 
imder  nine  separate  heads. 

The  following  extracts  from  the  text  of  these  nine  general  prin- 
ciples will  illustrate  the  committee's  usage  of  the  term  "  aborigines  " : 

The  protection  of  the  aborigines  should  be  considered  as  a  duty  particularly 
belonging  and  appropriate  to  the  executive  government  as  administered  either 
in  this  country  or  by  the  governors  of  the  respective  colonies.     *     *     * 

The  settlers  In  almost  every  colony,  having  either  disputes  to  adjust  with 
the  native  tribes,  or  claims  to  urge  against  them,  the  representative  body  is 
virtually  a  party,  and  therefore  ought  not  to  be  a  judge  in  such  controversies. 
Or  if  the  members  of  the  colonial  legislature  are  not  chosen  by  the  people,  but 
selected  by  the  government,  there  is  still  a  similar  objection  to  their  interfer- 
ence with  the  aborigines.     *     *     * 

Whatever  may  be  the  legislative  system  of  any  colony,  we  therefore  advise 
that,  as  far  as  possible,  the  aborigines  be  withdrawn  from  Its  control. 


14       THE  QUESTION   OF  ABORIGINES  IN   THE  LAW   OF   NATIONS. 

In  the  formation  of  any  new  colonial  constitution,  or  in  the  amendment  of 
any  which  now  exist,  we  think  that  the  initiative  of  all  enactments  affecting 
the  aborigines  should  be  vested  in  the  officer  administering  the  government; 
that  no  such  law  should  take  effect  until  it  has  been  expressly  sanctioned  by 
the  Queen.     *     *     * 

Your  committee  would  take  occasion  to  observe  that,  so  far  as  regards  that 
portion  of  the  aborigines  who  may  inhabit  the  country  beyond  our  colonial 
frontiers,  the  provincial  legislatures  have  no  authority  to  make  enactments; 
and  thus  far,  therefore,  there  will  be  less  difficulty  in  retaining  the  government 
of  our  relations  with  the  aborigines  in  more  impartial  hands.     *     *     * 

All  contracts  for  service  into  which  any  of  the  aborigines  may  enter  with 
any  of  the  colonists  should  be  expressly  limited  in  their  duration,  to  a  period 
which  should,  in  no  case,  exceed  12  months.     *     *     * 

So  far  as  the  lands  of  the  aborigines  are  within  any  territories  over  which 
the  dominion  of  the  Crown  extends,  the  acquisition  of  them  by  her  Majesty's 
subjects,  upon  any  title  of  purchase,  grant,  or  otherwise,  from  their  present 
proprietors,  should  be  declared  illegal  and  void.     *     *     * 

When  the  British  law  is  violated  by  the  aborigines  within  the  British 
dominions,  it  seems  right  that  the  utmost  indulgence  compatible  with  a  due 
regard  for  the  lives  and  property  of  others  should  be  shown  for  their  ignorance 
and  prejudices.     *     *     * 

In  the  case  of  offences  committed  beyond  the  frontiers,  British  subjects  are 
amenable  to  colonial  courts — the  aborigines  are  not.  *  *  *  j^  would,  there- 
fore, on  every  account  be  desirable  to  induce  the  tribes  in  our  vicinity  to  con- 
cur in  devising  some  simple  and  effectual  method  of  bringing  to  justice  such  of 
their  own  people  as  might  be  guilty  of  an  offence  against  the  Queen's  subjects. 

As  a  general  rule,  *  *  *  it  is  inexpedient  that  treaties  should  be  fre- 
quently entered  into  between  the  local  governments  and  the  tribes  in  their 
vicinity.  *  *  *  The  safety  and  welfare  of  an  uncivilized  race  require  that 
their  relations  with  their  more  cultivated  neighbors  should  be  diminished 
rather  than  multiplied.  *  *  *  To  the  preceding  statement  an  exception  is 
to  be  made  as  far  as  respects  the  pastoral  relation  formed  between  Christian 
missionaries  and  the  aborigines.  To  protect,  assist,  and  countenance  these 
gratuitous  and  invaluable  agents  is  amongst  the  most  urgent  duties  of  the 
governors  of  our  colonies.  On  the  other  hand,  those  by  whom  the  missionaries 
are  selected  and  employed,  can  not  be  too  deeply  impressed  with  a  sense  of 
the  responsibility  under  which  that  choice  is  made.  Without  deviating  into 
discussions  scarcely  within  the  province  of  a  parliamentary  committee,  it  may 
be  observed  that  piety  and  zeal,  though  the  most  essential  qualifications  of  a 
missionary  to  the  aborigines,  are  not  the  only  endowments  indispensable  to 
the  faithful  discharge  of  his  office;  in  such  situations  it  is  necessary  that, 
with  plans  of  moral  and  religious  improvement,  should  be  combined  well 
matured  schemes  for  advancing  the  social  and  political  improvement  of  the 
tribes,  and  for  the  prevention  of  any  sudden  changes  which  might  be  in- 
jurious to  the  health  and  physical  constitution  of  the  new  converts. 

The  British  and  Foreign  Aborigines  Protection  Society  has  always 
based  itself  upon  the  Report  of  the  Parliamentary  Committee  of 
1837,  and  in  its  proceedings  and  publications,  and  those  of  its  allied 
societies  in  other  countries,  the  word  "  aborigines "  has  been  per- 
sistently used  in  the  sense  in  which  it  is  used  in  that  report.  In  its 
national  acts,  however,  Great  Britain  has  used  the  word  "  natives  " 


THE   QUESTION    OF   ABORIGINES  IN    THE    LAW   OF    NATIONS.       15 

almost  exclusively.  The  United  States,  having  had  to  deal  only 
with  the  American  Indians,  has  in  its  national  action  described 
them  merely  as  "  Indians " ;  and  the  same  is  true  of  Canada. 
France,  and  the  Latin  countries  use  exclusively  the  word  indigenes, 
Germany  and  the  Germanic  countries  use  exclusively  the  word 
eingeho7'enen. 

It  is  only  when  the  problem  of  the  contact  between  civilized  and 
uncivilized  races  is  considered  as  distinct  from  its  relation  to  any 
one  civilized  state,  and  as  a  matter  of  common  interest  to  all  civil- 
ized states  that  the  word  "  aborigines  "  is  coming  into  general  use. 
As  a  Latin  word  it  fits  into  all  languages.  The  Englishman,  accus- 
tomed to  the  word  "natives,"  the  American  thinking  in  terms  of 
"Indians,"  the  Frenchman  using  invariably  the  term  indigenes^ 
and  the  German  employing  the  word  eingehorenen  can  find  in  the 
word  "  aborigines "  a  term  which  all  can  adopt  in  discussing  the 
common  problem  which  each  nation  is  called  upon  to  meet  and  solve 
In  its  colonizing  activities. 

The  final  act  of  the  Berlin  African  Conference  of  1884-85  in  the 
original  (French)  version  uses  the  word  indigenes,  and  the  offi- 
cial English  translation  the  word  "  natives."  In  the  preamble  of 
the  final  act  of  the  Brussels  Conference,  the  original  (French)  ver- 
sion uses  the  expression  de  proteger  efficacement  les  populations 
ahorigenes  de  VAfrique.  In  the  official  English  translation  the 
paragraph  in  which  these  words  occur  is  thus  worded : 

Being  equally  actuated  by  the  firm  intention  of  putting  an  end  to  the  crimes 
and  devastations  engendered  by  the  traffic  in  African  slaves,  of  efficiently  pro- 
tecting the  aboriginal  population  of  Africa,  and  of  securing  to  that  vast  con- 
tinent the  benefits  of  peace  and  civilization. 

Assuming  that  the  above  definition  of  aborigines  is  correct,  the 
question  of  aborigines  in  the  law  and  practice  of  nations  is : 

First.  What  are  the  general  principles  of  the  law  of  nations  which 
the  colonizing  states  respectively  have  recognized  and  applied  and 
now  recognize  and  apply,  as  governing  their  respective  relations 
with  the  uncivilized  tribes  which  were  inhabiting  the  regions  colon- 
ized by  them  at  the  time  they  respectively  assumed  the  sovereignty 
of  the  regions? 

Second.  To  what  extent  and  on  what  principles  have  civilized 
states  cooperated  with  each  other  in  recognizing  and  applying  these 
principles  ? 


CHAPTER  II. 

HISTORICAL   INTRODUCTION. 

The  instructions  of  the  Department  in  regard  to  the  making  of  this 
study  of  authorities  and  documents  state  that  "  the  plan  does  not,  in 
general,  contemplate  research  prior  to  the  period  of  the  Congress  of 
Vienna,"  but  that  this  limitation  is  not  imperative.  The  peace  of 
1763  between  Great  Britain  and  France,  involving  as  it  did  the  trans- 
fer of  territory  inhabited  by  aboriginal  tribes,  would  seem  to  have 
been  the  occasion  of  an  investigation  into  the  law  of  nations  on  this 
subject  which  resulted  in  the  formulation  of  the  basic  principles  sub- 
sequently applied  by  the  European  nations  and  the  United  States. 
Therefore  the  peace  of  1763,  rather  than  the  Congress  of  Vienna,  is 
in  this  study  taken  as  beginning  of  the  modern  law  on  the  subject. 

The  views  held  by  Great  Britain  and  France  in  1763  are  evidenced 
by  the  fact  that  in  the  peace  treaty  they  disposed  of  the  territory  in- 
habited by  Indian  tribes  without  any  reference  to  them;  thus  as- 
suming that  aboriginal  tribes  had  neither  a  title  to  the  soil  nor  sov- 
ereignty. The  royal  proclamation  of  1763,  making  the  fundamental 
dispositions  of  the  vast  hinterland  north  and  west  of  the  American 
colonies,  reserved  to  the  British  Government  the  exclusive  right  to 
purchase  and  extinguish  the  rights  of  the  Indian  tribes  as  occupants 
of  the  soil,  and  forbade  the  settlement  of  Europeans  on  territory 
occupied  by  the  Indians  until  after  the  Indian  right  had  been  extin- 
guished by  tribal  conveyance  to  the  British  Government;  so  that 
no  title  to  land  could  be  obtained  by  any  person  or  corporation  by 
an  Indian  conveyance.  The  British  Government  dealt  with  the  In- 
dian tribes  on  this  territory  by  so-called  "treaties,"  according  to 
which  the  tribes  accepted  the  protection  of  Great  Britain  and  agreed 
to  have  no  dealings  with  other  European  States. 

Meantime  all  the  western  European  powers  were  in  contact  with 
the  tribes  of  middle  Africa.  Their  citizens  were  engaged  in  deporting 
African  negroes  to  the  West  Indies  and  to  the  English,  French, 
Spanish,  and  Portuguese  colonies  of  America  to  supply  the  demand 
for  labor.  Slavery  was  universally  recognized  as  an  institution  not 
contrary  to  the  law  of  nations,  though  open  to  prohibition  by  any 
State.  The  African  negroes  were  sold  into  slavery.  The  deportation 
was  accompanied  with  inhumane  and  atrocious  practices,  the  negroes 
being  captured  and  conveyed  by  force  and  the  transportation  across 
16 


THE   QUESTION    OF   ABORIGINES  IN    THE   LAW   OF   NATIONS.       17 

the  ocean  being  effected  without  regard  to  the  fact  that  they  were 
human  beings. 

The  democratizing  and  humanitarian  movement  of  the  last  quarter 
of  the  eighteenth  century,  and  especially  the  American  declaration 
of  the  fundamental  rights  of  man,  contained  in  the  preamble  of  the 
Declaration  of  Independence,  led  to  a  discussion  of  slavery  and  the 
slave  trade,  and  thus  to  a  consideration  of  the  principles  of  the  law 
of  nations  regarding  the  relations  of  civilized  States  to  uncivilized 
peoples. 

In  the  ordinance  for  the  government  of  the  Northwest  Territory 
of  1787  slavery  was  abolished  in  the  Territory,  and  one  of  the  "Ar- 
ticles of  Compact"  covered  the  two  subjects  of  education  and  the 
relations  with  the  Indian  tribes,  thus  suggesting  a  relationship  to 
them  not  merely  of  protection  but  of  tutorship.  This  article  as- 
serted the  obligation  of  the  United  States  and  the  governments  estab- 
lished in  the  Northwest  Territory  to  deal  justly  with  the  Indians 
as  persons  domesticated  within  the  United  States,  but  not  forming 
a  part  of  its  citizenship. 

The  Articles  of  Confederation  and  the  Constitution  recognized 
the  Congress  as  the  organ  of  the  United  States  in  dealing  with  the 
Indian  tribes,  and  by  implication  provided  for  the  abolition  of  the 
slave  trade,  so  far  as  the  United  States  was  concerned,  in  1808.  By 
implication  slavery  and  the  slave  trade  were  recognized  as  permis- 
sible by  the  law  of  nations,  but  a  distinction  was  made  between  slave 
trade  and  slavery,  the  former  being  placed  in  the  way  of  abolition  at 
h  definite  time  and  the  time  of  abolition  of  the  latter  being  left 
uncertain. 

The  French  declaration  of  the  rights  of  man  in  1791,  followed  by 
the  decree  abolishing  slavery  in  the  French  colonies  in  1794 — which 
remained  in  force  until  the  restoration  of  slavery  by  the  Napoleonic 
government  in  1802 — stirred  up  discussion  in  Europe  over  the  whole 
question  of  the  relationship  of  the  civilized  States  to  uncivilized 
peoples. 

A  body  of  influential  persons  in  England  conceived  the  plan  of 
establishing  a  colony  at  Sierra  Leone  to  be  settled  by  negroes  re- 
claimed from  the  slave-trading  operations.  It  was  the  purpose  to 
civilize  these  negroes  and  use  them  as  the  means  of  extending  civili- 
zation. This  colony  came  in  contact  with  the  African  company  of 
merchants  and  traders,  whose  members  were  engaged  in  the  slave- 
trading  operations.  The  Sierra  Leone  experiment  failed,  but  by  the 
efforts  of  the  reformers  Great  Britain  forbade  the  slave  trade  to  its 
citizens  in  1807. ,  The  colony  was  turned  over  to  the  British  Govern- 
ment, and  the  persons  who  had  composed  the  Sierra  Leone  company 
formed  themselves,  in  1807,  with  the  cooperation  of  a  number  of  per- 

89581—19 2 


18     t:^e  question  of  aborigines  in  the  law  oe  nations. 

sons  of  social  and  political  prominence,  into  the  African  Associa- 
tion. This  was  a  propagandist  association  and  was  well  supported 
financially.  It  employed  its  own  counsel  and  had  a  great  influence 
with  the  British  Government.  During  the  Napoleonic  wars,  French 
commerce  on  the  sea  ceased,  and  with  it  the  French  slave  trade.  The 
Spanish,  Portuguese,  and  American  ships  engaged  in  the  trade  were 
captured  by  British  naval  vessels  as  engaged  in  a  trade  contrary  to 
the  law  of  nations,  taken  into  Sierra  Leone,  and  there  condemned 
by  the  vice- admiralty  court.  The  Spanish  and  Portuguese  govern- 
ments insisted  that  neither  slavery  nor  the  slave  trade  was  contrary  to 
the  law  of  nations,  and  that  the  abolition  of  either  by  any  nation  did 
not  affect  other  nations.  This  was  held  by  the  admiralty  courts  in 
Great  Britain  to  be  the  case,  but  they  upheld  the  right  of  British 
naval  vessels  to  capture  the  slave-trading  ships  of  anj  nation  that  had 
itself  prohibited  the  trade  to  its  own  citizens.  Thus,  according  to 
this  doctrine,  after  1808,  when  the  United  States  abolished  the  slave 
trade,  its  slave- trading  ships  were  subject  to  capture  by  British  naval 
vessels. 

In  this  situation  Great  Britain,  at  the  Congress  of  Vienna,  moved 
for  a  declaration  of  the  European  powers  in  favor  of  abolishing  the 
slave  trade.  It  was  decided  that  non-colonizing  powers,  as  well  as 
colonizing  powers,  might  participate  in  this  declaration,  since  it  was 
not  merely  a  colonial  question,  but  one  which  concerned  the  interests 
of  humanity.  First,  however,  Great  Britain  acknowledged  the 
legality  of  the  slave  trade  under  the  law  of  nations,  by  a  treaty  with 
Portugal  providing  for  payment  of  damages  for  capturing  her  slave 
ships,  and  the  powers  then  joined  in  the  famous  declaration  in  favor 
of  the  abolition  of  the  slave  trade.  The  United  States,  in  its  treaty 
of  peace  with  Great  Britain  after  the  war  of  1814,  had  made  a  dec- 
laration to  the  same  effect  some  two  months  before  the  declaration 
of  the  Congress  of  Vienna. 

Negotiations  looking  toward  cooperative  action  of  the  States  con- 
cerned to  stop  the  slave  trade  continued  at  the  subsequent  con- 
gresses of  the  powers,  but  were  of  no  avail,  because  all  the  powers, 
and  especially  France,  were  unwilling  to  agree  to  an  extension  of  the 
right  of  search  and  capture  at  sea,  hitherto  acknowledged  only  as  a 
belligerent  right,  so  that  it  should  apply  in  time  of  peace  to  ships 
engaged  in  a  trade  outlawed  by  the  nations.  Russia,  at  the  Congress 
of  Aix-la-Chapelle,  proposed  an  international  commission  of  sur- 
veillance, to  be  composed  of  delegates  of  all  the  powers,  to  be  located 
on  the  coast  of  Africa,  to  be  subject  to  the  regulation  of  European 
congresses,  and  to  wield  the  power  of  an  international  fleet  provided 
by  all  the  European  States,  for  the  capture  of  slave-trading  ships, 
such  ships  to  be  subject  to  condemnation  by  the  international  com- 
mission sitting  as  an  international  prize  court.     But  the  powers 


THE   QUESTION    OF   ABORIGINES  IN    THE    LAW    OF    NATIONS.       19 

objected  to  this  as  an  arrangement  in  derogation  of  national  sover- 
eignty. 

Meantime  as  the  nations  one  by  one  abolished  the  slave  trade  as 
respects  their  own  citizens  the  horrors  of  it  increased.  More  and 
more  vicious  characters  engaged  in  it,  as  it  took  on  the  character 
of  a  smuggling  operation;  and  the  necessity  of  concealing  the  vic- 
tims by  means  of  cargo  and  by  devices  specially  intended  for  con- 
cealment made  the  conditions  of  transportation  of  negroes  a  scandal 
to  the  civilized  world. 

The  difficulty  of  abolishing  the  slave  trade  on  the  sea  led  to  the 
perception  that  it  could  really  be  abolished  only  by  abolishing  it  on 
land  and  sea  alike.  The  study  of  the  conditions  essential  to  abolish- 
ing it  on  land  led  to  a  study  of  the  conditions  of  aboriginal  life, 
especially  in  Africa,  and  this  opened  the  way  for  the  study  of  the 
whole  question  of  aborigines,  both  as  related  to  the  individual  civil- 
ized States  exercising  sovereignty  over  them  and  as  related  to 
civilized  States  collectively  and  generally. 

While  this  situation  existed  in  Europe,  the  United  States  had  had 
occasion  to  consider  its  relations  with  the  Indians.  Washington, 
Adams,  and  Jefferson  had  pursued  a  policy  of  dealing  with  the 
Indian  tribes  in  the  Northwest  Territory  on  such  an  elevated  plane 
that  the  Indian  "treaties"  came  near  to  recognizing  the  tribes  in 
the  so-called  "  Indian  country  "  as  States.  This  "  Indian  country  " 
lay  between  the  United  States  and  Canada.  In  the  peace  negotia- 
tions between  the  United  States  and  Great  Britain  in  1814  the 
British  Government  proposed  as  a  term  of  peace  the  recognition  of 
the  "  Indian  country  "  as  an  Indian  buffer  state  under  the  protec- 
lion  of  Great  Britain  and  the  United  States.  The  "  treaties  "  of  the 
United  States  with  the  Indian  tribes  were  pointed  to  by  the  British 
commissioners  as  evidencing  the  recognition  of  the  collective  tribes 
as  a  native  state.  This  claim  was  met  by  the  commissioners  of  the 
United  States  by  showing  that  the  United  States  had  always  claimed 
and  acted  under  the  principles  of  the  law  of  nations  as  recognized 
by  France  and  Great  Britain  in  1763,  and  that  the  Indian  tribes 
were  domesticated  communities  of  the  United  States,  which  it  cus- 
tomarily dealt  with  by  agreement  or  treaty,  but  which  were  subject 
to  its  sovereignty  and  plenary  jurisdiction  and  entitled  to  its  pro- 
tection. 

Under  President  Monroe,  this  understanding  of  the  relations  of 
the  United  States  with  aboriginal  tribes  eventuated  in  a  general 
movement  for  ameliorating  the  condition  of  the  Indians  and  of  the 
negroes.  The  plan  was  to  colonize  the  Indians  in  the  Western 
Territory  under  the  protection  and  sovereignty  of  the  United  States, 
and  the  negroes  in  Africa,  under  the  protection  and  patronage  of  the 


20       THE   QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

United  States.  The  removal  of  the  Indians  was  undertaken  by 
President  Monroe,  and  the  Indian  question  was  discussed  in  Congress 
and  in  the  press;  the  conclusions  of  the  American  Government, 
adopted  in  1814,  being  confirmed  more  and  more  strongly  as  lawyers 
and  statesmen  examined  and  reexamined  the  question.  The  plan  for 
colonizing  the  negroes  in  Africa  was  taken  up  by  national  and  State 
organizations  and  was  patronized  by  the  Government,  which  assisted 
by  means  of  its  naval  vessels  and  by  sending  out  agents  of  a  consular 
character  to  supervise  the  settlements  of  negroes  in  Africa. 

Meantime  test  cases  were  brought  before  the  Supreme  Court  of 
the  United  States.  Claims,  asserted  under  grants  of  land  to  indi- 
viduals made  by  Indian  tribes,  in  opposition  to  later  United  States 
patents  of  the  same  land,  compelled  the  Supreme  Court,  under  Chief 
Justice  Marshall,  in  1823  (Johnson  v.  Mcintosh,  8  Wheaton,  543), 
to  examine  the  whole  question  of  aborigines  in  the  law  and  practice 
of  nations.  The  result  was  that  the  Indian  tribes  were  declared  to 
hold  the  relationship  to  the  United  States  of  domesticated  commu- 
nities, in  the  nature  of  municipal  corporations,  without  other  right 
in  the  land  than  that  of  uncivilized  occupancy — a  right  which  was 
not  transferable  to  any  individual,  civilized  or  uncivilized,  and  which 
was  subject  only  to  extinction  by  tribal  conveyance  made  to  the 
State  exercising  the  sovereignty.  A  little  later,  in  a  case  involving 
Indian  tribal  rights  by  treaty  (Cherokee  Nation  v.  Georgia,  5 
Peters,  1)  the  court,  again  speaking  by  Chief  Justice  Marshall,  de- 
scribed the  Indians  as  "  wards  of  the  Nation,"  thus  substituting  for 
the  relationship  of  mere  "  protection."  the  more  humane  idea  of 
"  guardianship." 

In  1826,  in  the  case  of  The  Antelope,  10  Wheaton,  66,  the  Supreme 
Court,  in  a  case  involving  the  right  to  capture  a  ship  engaged  in  slave 
trading,  speaking  by  Chief  Justice  Marshall,  held  that  neither 
slavery  nor  the  slave  trade  was  contrary  to  the  law  of  nations;  the 
fact  that  it  was  under  the  ban  of  the  proposal  of  the  Congress  of 
Vienna  for  universal  abolition  by  uniform  and  cooperative  national 
action  not  having  changed  the  law  as  it  stood  before  the  proposal 
was  made. 

The  labors  of  the  English  reformers  regarding  slavery  having 
eventuated  in  1833  in  the  abolition  of  slavery  in  the  British  colonies 
by  compensation  paid  to  slave  owners,  a  part  of  them,  as  has  been 
said,  turned  their  attention  to  the  wider  question  of  the  rights  and 
duties  of  civilized  States  toward  aborigines  in  general,  calling  them- 
selves the  British  and  Foreign  Aborigines  Protection  Society;  the 
others  devoting  themselves  to  the  problem  of  stopping  the  operations 
of  the  smuggling  slave  traders  at  sea  and  the  slave-raiding  expedi- 
tions on  land.     In  1842  the  principal  maritime  States  succeeded  in 


THE   QUESTION    OF   ABORIGINES  IN    THE    LAW    OF    NATIONS.       21 

agreeing  upon  a  reciprocal  right  of  search  of  their  vessels  for  sus- 
pected slave  trading,  this  right  being  restricted  to  identified  naval 
ships  and  being  permissible  only  within  a  specified  zone  of  the  ocean. 

Reference  to  the  report  of  the  British  Parliamentary  Committee 
on  Aboriginal  Tribes  of  1837  has  already  been  made.  It  was  not  a 
definitely  legal  clocument,  and  purported  to  examine  the  question 
rather  as  a  practical  one  of  a  social  and  ethical  character.  It  accen- 
tuated the  moral  duties  of  colonizing  States,  but  did  not  venture 
upon  a  consideration  of  how  far  these  responsibilites  had  been  by 
international  recognition  transformed  into  legal  obligations  of  inter- 
national trusteeship  and  guardianship. 

The  American  negro  settlements  on  the  west  coast  of  Africa  main- 
tained a  precarious  existence  and  an  indefinite  international  status. 
They  resembled  colonies  of  the  United  States  to  some  extent,  but  the 
United  States,  on  account  of  the  Monroe  doctrine,  denied  itself 
sovereignty  over  them  and  asserted  their  independence  under  its 
patronage.  Their  international  independence  was  at  last  recognized 
and  the  State  of  Liberia  came  into  existence.  The  United  States  has 
stood  in  the  position  of  "next  friend,"  or  international  patron,  dis- 
claiming sovereignty  or  control  of  any  kind,  but  holding  itself 
morally  obligated  to  use  its  good  offices  on  behalf  of  Liberia  in  all 
international  complications.  It  has  thus  maintained  a  species  of 
international  guardianship — a  benevolent  surveillance  without  claim 
of  sovereignty  or  responsibility.  The  question  of  Liberia  is  plainly 
not  one  of  the  relationship  of  civilized  states  to  aboriginal  tribes, 
since  the  inhabitants,  though  of  aboriginal  descent,  are  civilized. 

After  the  Civil  War  the  abolition  of  slavery  in  the  United  States 
made  possible  clear  legal  thinking  and  definite  action  on  the  ques- 
tion of  the  law  of  nations  relating  to  aborigines.  President  Grant, 
in  his  first  message,  reasserted  that  the  Indians  were  "  wards  of  the 
Nation  "  and  set  about  the  task  of  making  a  settlement  of  the  Indian 
problem.  Congress  established  a  Board  of  Indian  Commissioners  as 
a  commission  of  surveillance  for  all  the  Indian  tribes,  with  advisory 
powers  under  the  Secretary  of  the  Interior.  At  the  same  time  it 
reformed  the  Indian  agencies  and  abolished  for  the  future  the  prac- 
tice of  dealing  with  the  Indian  tribes  by  treaty.  The  Supreme  Court 
has  at  all  times  asserted  and  reasserted  the  principle  that  the  Indian 
tribes  are  the  wards  of  the  Nation  and  has  liberally  interpreted  the 
guardianship  so  as  to  enable  the  United  States  efficiently  to  protect 
and  train  the  Indians. 

The  Berlin  African  Conference  of  1884-85  marked  a  definite  ac- 
ceptance by  the  civilized  States  of  a  legal  relationship  towards  ab- 
original tribes  of  a  personal  and  fiduciary  character — ;a  responsibility 
which  was  at  once  individual  and  collective.    The  declaration  of  the 


22       THE   QUESTION   OF  ABORIGINES  IN   THE  LAW   OF   NATIONS. 

conference  regarding  aborigines  left  no  doubt  on  this  point.  The 
principle  of  the  law  of  nations  that  such  tribes  are  wards  of  the 
society  of  nations,  and  that  the  sovereignty  of  civilized  States  over 
them  follows  the  dispositions  of  territorial  sovereignty  made  by  the 
civilized  States  among  themselves,  was  upheld. 

The  Berlin  African  Conference,  by  its  declaratory  action  of  a 
legislative  nature,  gave  an  international  character  to  the  whole  ter- 
ritory of  middle  Africa — the  conventional  basin  of  the  Congo  so- 
-called. By  this  international  action  this  great  territory  became  to 
♦some  extent  what  may  be  called  a  zone  of  international  jurisdiction 
(under  international  surveillance.  The  United  States,  claiming  a 
special  interest  in  this  region  by  reason  of  the  discoveries  of  Stanley, 
an  American  citizen,  but  renouncing  individual  sovereignty  and 
guardianship  over  it  in  deference  to  its  policy  declared  by  Monroe, 
took  the  lead  in  the  movement  to  place  the  region  under  the  over- 
sovereignty  and  chancellorship  of  all  the  cizilized  States  collec- 
tively. Seconded  by  some  of  the  European  States,  it  succeeded  to 
a  certain  extent.  In  its  effort  to  convert  middle  Africa  into  an  inter- 
national territory  for  the  benefit  of  the  aborigines,  it  utilized  the 
International  Congo  Association,  a  private  association  of  an  inter- 
national character,  which  had  gained  political  influence  in  middle 
Africa  by  treaties  with  the  aboriginal  tribes.  Six  months  before  the 
Berlin  Conference  the  United  States  recognized  the  association  as  a 
State  which  w^as  to  act  as  the  medium  for  internationalizing  middle 

(Africa.  During  the  Berlin  African  Conference  the  other  States,  in- 
spired by  the  benevolent  plans  and  purposes  of  the  United  States 
toward  Negro  Africa,  recognized  the  association  as  a  State.  The 
international  character  thus  impressed  upon  the  Congo  basin  by  the 
national  acts  of  recognition  was  made  more  specific  by  the  express 
recognition  of  the  conference.  The  international  character  of  middle 
Africa  was  thus  protected  by  what  was  virtually  a  covenant  run^ 
ning  with  the  land.  The  plan  of  the  United  States  for  an  interna- 
tional neutralization  of  the  territory  received  only  a  shadowy  recog- 
nition in  the  final  act  of  the  conference,  and  the  plan  of  Germany  for 
an  international  commission  of  surveillance  met  a  similar  fate. 

The  Brussels  African  Conference  of  1889-90  applied  the  principle 
of  international  cooperation  concerning  common  measures  for  abol- 
ishing the  slave  trade  and  for  protecting  the  aborigines  inhabit- 
ing the  great  zone  of  middle  Africa  between  the  desert  on  the  north 
and  the  Cape  region  on  the  south  against  the  two  most  powerful 
agents  of  their  self-destruction— intoxicants  and  firearms. 

The  period  since  1890  has  been  marked  by  a  definite  acceptance  and 
application  by  all  civilized  States  of  the  principle  of  guardianship 
of  aborigines.     The  demand  for  unskilled  labor  has  assisted  in  the 


THE   QUESTION   OF  ABORIGINES  IN   THE  LAW   OF   NATIONS.       23 

acceptance  of  this  humane  conception  of  the  relationship — ^the  guard- 
ianship of  aborigines  having  the  effect  not  only  to  satisfy  the  con- 
science but  the  economic  needs  of  the  civilized  States.  Numerous 
colonial  conferences,  both  national  and  international,  have  been  held, 
some  of  them  dealing  wi£h  the  question  of  the  methods  to  be  applied 
in  the  guardianship  of  aborigines.  International  agreements  for  col- 
lective guardianship  have  been  made,  as  in  the  case  of  the  Samoan 
Islands,  illustrating  the  dangers  of  international  control  as  dis- 
tinguished from  international  cooperation  and  surveillance. 

Above  all,  the  entrance  of  the  United  States  into  the  work  of 
colonization,  with  the  fullest  recognition  and  most  complete  applica- 
tion of  the  principles  of  guardianship  and  tutorship  of  aboriginal 
tribes,  has  profoundly  stimulated  the  civilized  States  to  a  more  and 
more  complete  acceptance  and  fulfillment  of  their  international 
responsibilities  in  this  respect. 


CHAPTER  III.  ' 

ABORIGINES  AS  THE  WARDS  OF  THE  STATE  WHICH  EXERCISES  SOVEREIGNTT 

OVER  THEM. 

The  nature  of  the  relationship  between  a  civilized  State  exercising 
sovereignty  over  a  region  and  the  aboriginal  tribes  inhabiting  there 
was  thus  stated  in  1821,  in  a  report  made  to  the  Secretary  of  War 
under  the  direction  of  President  Monroe  by  Rev.  Jedediah  Morse, 
a  special  commissioner  appointed  to  visit  and  report  upon  the  Indian 
tribes  in  the  United  States :        v 

The  Government,  according  to  the  law  of  nations,  having  jurisdiction  over 
the  Indian  territory,  and  the  exclusive  right  to  dispose  of  its  soil,  the  whole 
Indian  population  is  reduced,  of  necessary  consequence,  to  a  dependent  situa- 
tion. They  are  without  the  privileges  of  self-government,  except  in  a  limited 
degree,'  and  without  any  transferable  property.  They  are  ignorant  of  nearly 
all  the  useful  branches  of  human  knowledge,  of  the  Bible,  and  of  the  only 
Savior  of  men  therein  revealed.  They  are  weak  and  ready  to  perish;  we  are 
strong,  and  with  the  help  of  God,  able  to  support,  to  comfort,  and  to  save 
them.  In  these  circumstances  the  Indians  have  claims  on  us  of  high  im- 
portance to  them  and  to  our  own  character  and  reputation  as 'an  enlightened, 
just,  and  Christian  Nation.  In  return  for  what  they  virtually  yield,  they  are 
undoubtedly  entitled  to  expect  from  our  honor  and  justice  protection  in  all 
the  rights  which  they  are  permitted  to  retain.  They  are  entitled,  as  "  chil- 
dren "  of  the  Government,  for  so  we  call  them,  peculiarly  related  to  it,  to 
kind  paternal  treatment,  to  justice  in  all  our  dealings  with  them,  to  education 
in  the  useful  arts  and  sciences,  and  in  the  principles  and  duties  of  our  religion. 
In  a  word,  they  have  a  right  to  expect  and  to  receive  from  our  civil  and 
religious  communities  combined  that  sort  of  education,  in  all  its  branches, 
which  we  are  accustomed  to  give  to  the  minority  of  our  own  population,  and 
thus  to  be  raised  gradually  and  ultimately  to  the  rank  and  to  the  enjoyment  of 
all  the  rights  and  privileges  of  freemen  and  citizens  of  the  United  States. 
This  I  conceive  to  be  the  precise  object  of  the  Government.  If  we  fulfill  not 
these  duties,  which  grow  naturally  out  of  our  relation  to  Indians,  we  can  not 
avoid  the  imputation  of  injustice,  unkindness,  and  unfaithfulness  to  them — our 
national  character  must  suffer  in  the  estimation  of  all  good  men.  If  we  re- 
fuse to  do  the  things  we  have  mentioned  for  the  Indians,  let  us  be  con- 
sistent and  cease  to  call  them  "  children,"  and  let  them  cease  to  address  our 
President  as  their  "  great  father."  Let  us  leave  to  them  the  unmolested  en- 
joyment of  the  territories  they  now  possess  and  give  back  to  them  those  w^hich 
we  have  taken  away  from  them. 

*  *  «  *  *  *  * 

As  the  Government  assumes  the  guardianship  of  the  Indians,  and  in  this 
relation  provides  for  their  proper  education,  provision  also  should  be  made 
for  the  exercise  of  a  suitable  government  and  control  over  them.     This  gov- 
ernment unquestionably  should  be  in  its  nature  parental — absolute,  kind,  and 
24 


THE   QUESTION    OF   ABORIGINES  IN    THE    LAW   OF    NATIONS.       25 

mild,  such  as  may  be  created  by  a  wise  union  of  a  well-selected  military  estab- 
lishment, and  an  education  family.  The  one  possessing  the  power,  the  other 
the  softening  and  qualifying  influence,  both  combined  would  constitute,  to  all 
the  purposes  requisite,  the  parental  or  guardian  authority. 

In  1830  the  Committee  on  Indian  Affairs  of  the  United  States 
House  of  Representatives,  to  whom  was  referred  that  part  of  the 
President's  message  recommending  the  removal  of  the  southern  tribes 
of  Indians  to  a  reservation  in  the  United  States  territory  west  of  the 
Mississippi,  said  in  their  report  (21st  Cong.,  1st  sess.,  H.  R.  Rep.  No. 
227,  Feb.  24,  1830) : 

Principles  of  natural  law  and  abstract  justice  are  appealed  to  by  some  to 
show  that  the  Indian  tribes  within  the  territorial  limits  of  the  States  ought 
still  to  be  regarded  as  the  owners  of  the  absolute  property  in  the  soil  they 
occupy,  and  that  they  are  to  be  regarded  as  independent  communities,  having 
all  the  attributes  of  sovereignty  except  such  as  they  have  voluntarily  sur- 
rendered.   *    *    * 

It  is  not  *  *  *  so  important  to  attempt  a  definition  of  the  nature  and 
obligation  of  any  abstract  principles,  about  which  there  will  always  be  con- 
flicting opinions,  as  to  state,  with  as  much  precision  as  possible,  the  interpreta- 
tion of  those  principles,  which  :s  to  be  found  in  the  maxims  and  practices  of 
those  civilized  societies  which  settled  this  part  of  America,  and  of  those  which 
have  since  sprung  up,  in  relation  to  Indian  rights. 

The  proofs  of  what  that  interpretation  has  been  are  to  be  found  in  the 
charters,  laws,  constitutions,  and  general  policy  of  the  various  governments, 
colonial.  State,  and  Federal ;  and  to  those,  it  would  seem,  we  must  look  for 
the  only  admissibly  tests  of  the  extent  of  Indian  rights,  on  the  one  hand,  and 
of  the  rights  and  powers  of  the  States  and  of  the  Federal  Government  on  the 
other. 

The  nature  and  condition  of  things  as  they  actually  exist  must  be  taken  as 
the  groundwork  of  the  future  policy  and  action  of  the  Government  upon  this 
subject,  and  not  what,  in  our  opinions,  they  should  have  been. 

The  foundations  of  the  States  which  constitute  this  confederacy  were  laid 
by  Christian  and  civilized  nations,  who  were  instructed  or  misled  as  to  the 
nature  of  their  duties  by  the  precepts  and  examples  contained  in  the  volume 
which  they  acknowledged  as  the  basis  of  their  religious  rites  and  creed.  To 
go  forth,  to  subdue  and  replenish  the  earth,  were  received  as  divine  com- 
mands or  relied  on  as  plausible  pretexts  to  cover  mercenary  enterprises  by 
the  Governments  which  gave  the  authority  and  the  adve^^turers  who  first  dis- 
covered and  took  possession  of  the  New  World.  Whether  they  were  right  or 
wrong  in  their  construction  of  the  sacred  text,  or  whether  their  conduct  can 
in  every  respect  be  reconciled  with  their  professed  objects  or  not,  it  is  certain 
that  possession,  actual  or  constructive,  of  the  entire  habitable  portion  of  this 
continent  was  taken  by  the  nations  of  Europe,  divided  out,  and  held  originally 
by  the  right  of  discovery  as  between  themselves  and  by  the  rights  of  discovery 
and  conquest  as  against  the  aboriginal  inhabitants.  In  the  Spanish  Provinces, 
the  Indians  became  the  property  of  the  grantee  of  the  district  of  country  which 
they  inhabited ;  and  this  oppression  was  continued  for  a  considerable  period. 
Although  the  practice  of  the  Crown  of  England  was  not  marked  by  an  equal 
disregard  of  the  rights  of  personal  liberty  in  the  Indians,  yet  their  pretensions 
to  be  the  owners  of  any  portion  of  the  soil  were  wholly  disregarded.  The  Eng- 
lish colonies  and  plantations  are  known  to  have  been  settled  and  governed 


26        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF   NATIONS. 

under  various  charters,  commissions,  and  instructions  issued  by  the  Crown  to 
individuals  and  companies,  some  of  which  contained  grants  of  extensive  dis- 
tricts, to  be  held  in  absolute  property,  accompanied  by  certain  political  powers 
and  privileges ;  while  others  contained  grants  of  political  privileges  only.  This 
difference  in  the  nature  and'  extent  of  the  rights  granted  gave  rise  to  the  dis- 
tinction between  proprietary  and  regal  governments  among  the  colonies. 
Although  the  paramount  sovereignty  of  the  mother  country  was  reserved  in  all 
the  charters,  yet,  as  in  those  which  included  a  grant  of  the  absolute  property 
in  the  soil  there  was  no  reservation  of  any  part  of  it  to  the  natives,  they  were 
left  to  be  disposed  of  as  the  proprietors  thought  proper.  It  is  matter  of 
history  that  the  Crown,  having  the  power  under  such  restrictions  as  the  spirit 
of  the  English  institutions  imposed  to  regulate  the  affairs  of  those  colonies 
which  were  originally  and  of  others  which  afterwards  came  under  its  control, 
by  the  forfeiture  or  surrender  of  their  original  charters,  permitted  the  Indians 
in  all  of  them  to  be  governed  or  otherwise  disposed  of  by  the  colonial  authori- 
ties without  any  interference  on  its  part  until  within  a  very  short  period  before 
the  Revolution.  Thus  it  happened  that  in  all  the  colonies  the  maxims  and 
conduct  adopted  and  pursued  in  relation  to  the  Indians  were  substantially  the 
same.  Humanity  and  the  religious  feeling  of  the  early  adventurers  forbade 
that  they  should  be  thrust  with  violence  out  of  the  land.  The  trade  with  the 
great  tribes  of  the  interior  was  profitable,  and  the  peculiar  mode  of  warfare 
practiced  by  the  Indians  soon  brought  the  colonists  to  perceive  the  advantage 
of  cultivating  peaceable  relations  with  all  of  them.  This  interest,  however,  was 
found,  in  the  progress  of  the  new  societies,  to  be  opposed  to  another  great 
interest,  which  was  that  their  resources  should  be  increased  and  the  demands 
of  the  cultivator  supplied  by  appropriating  the  wild  land  within  their  limits  as 
speedily  as  possible.  The  difficulty  that  was  felt  in  reconciling  these  two  in- 
terests lies  at  the  foundation  of  the  policy  which  was  adopted  in  relation  to 
the  Indians,  and  the  expedients  which  were  resorted  to  in  order  to  effect  an 
object  so  important  constitute  the  evidence  of  what  the  policy  of  the  country 
was  from  that  time  up  to  the  formation  of  the  Constitution.  One  of  those 
expedients  was  to  appear  to  do  nothing  which  concerned  the  Indians,  either 
in  the  appropriation  of  their  hunting  grounds  or  in  controlling  their  conduct, 
without  their  consent.  It  is  not  intended  to  be  asserted  that  this  device  was 
employed  by  all  the  colonies  from  their  first  settlement.  It  came,  however, 
to  be  a  general  principle  of  action  upon  this  subject  at  some  period  or  other 
of  their  progress,  and  was  adhered  to  when  found  practicable  and  in  any 
degree  consistent  with  their  interests,  but  in  several  instances,  some  of  which 
occurred  at  an  early  and  others  at  a  later  period,  the  public  interests  were 
believed  to  require  a  departure  from  it ;  but  in  all  the  acts,  first  of  the  colonies 
and  afterwards  by  the  States,  the  fundamental  principle  that  the  Indians  had 
no  rights  by  virtue  of  their  ancient  possession  either  of  soil  or  sovereignty 
has  never  been  abandoned,  either  expressly  or  by  implication.  ^ 

The  rigor  of  the  rule  of  their  exclusion  from  those  rights  has  been  mitigated, 
in  practice,  in  conformity  with  the  doctrines  of  those  writers  upon  natural 
law  who,  while  they  admit  the  superior  right  of  agriculturists  over  the  claims 
of  savage  tribes  in  the  appropriation  of  wild  lands,  yet,  upon  the  principle  that 
the  earth  was  intended  to  be  a  provision  for  all  mankind,  assign  to  them  such 
portion  as,  when  subdued  by  the  arts  of  the  husbandman,  may  be  sufficient  for 
their  subsistence. 

In  the  case  of  Johnson  v.  Mcintosh,  8  Wheaton,  543,  decided  by 
the  Supreme  Court  of  the  United  States  in  1823,  the  court,  speaking 
by  Chief  Justice  Marshall,  regarded  the  relationship  of  the  Euro- 


THE   QUESTTO]!^    OF   ABORIGINES  IN    THE   LAW    OF   NATIONS.       27 

pean  discoverers  to  the  aboriginal  tribes  of  America  as  based  pri- 
marily on  the  rules  of  international  law  concerning  conquest  in  war, 
as  modified  by  the  humanitarian  instincts  of  the  conquerors  and  the 
needs  of  the  situation  due  to  the  mental  and  moral  backwardness 
of  those  living  in  a  tribal  state.    In  the  opinion  the  court  said : 

The  tribes  of  Indians  Inhabiting  this  country  were  fierce  savages,  whose  occu- 
pation was  war,  and  whose  subsistence  was  drawn  chiefly  from  the  forest.  To 
leave  them  in  possession  of  their  country,  was  to  leave  the  country  a  wilder- 
ness; to  govern  them  as  a  distinct  people  was  impossible,  because  they  were 
as  brave  and  high-spirited  as  they  we^e  fierce,  and  were  ready  to  repel  by  arms 
every  attempt  on  their  independence. 

What  was  the  inevitable  consequence  of  this  state  of  things?  The  Europeans 
were  under  the  necessity  either  of  abandoning  the  country,  and  relinquishing 
their  pompous  claims  to  it,  or  of  enforcing  those  claims  by  the  sword,  and  by 
the  adoption  of  principles  adapted  to  the  condition  of  a  people  with  whom  it 
was  impossible  to  mix,  and  who  could  not  be  governed  as  a  distinct  society; 
or  of  remaining  in  their  neighborhood  and  exposing  themselves  and  their 
families  to  the  perpetual  hazard  of  being  massacred. 

Frequent  and  bloody  wars,  in  which  the  whites  were  not  always  the  aggres- 
sors, unavoidably  ensued.  European  policy,  numbers,  and  skill  prevailed.  As 
the  white  population  advanced,  that  of  the  Indians  necessarily  receded.  The 
country  in  the  immediate  neighborhood  of  agriculturalists  became  unfit  for 
them.  The  game  fled  into  thicker  and  more  unbroken  forests,  and  the  Indians 
followed.  The  soil,  to  which  the  Crown  originally  claimed  title,  being  no  longer 
occupied  by  its  ancient  inhabitants,  was  parceled  out  according  to  the  will  of 
the  sovereign  power,  and  taken  possession  of  by  persons  who  claimed  imme- 
diately from  the  Crown,  or  mediately  through  its  grantees  or  deputies. 

That  law  which  regulates  and  ought  to  regulate,  in  general,  the  relations  be- 
tween the  conqueror  and  the  conquered  was  incapable  of  application  to  a  people 
under  such  circumstances.  The  resort  to  some  new  and  different  rule,  better 
adapted  to  the  actual  state  of  things,  was  unavoidable.  Every  rule  which 
can  be  suggested  will  be  found  to  be  attended  with  great  difficulty. 

However  extravagant  the  pretension  of  converting  the  discovery  of  an  in- 
habited country  into  conquest  may  appear,  if  the  principle  has  been  asserted  in 
the  first  instance  and  afterwards  sustained;  if  a  country  has  been  acquired 
and  held  under  it ;  if  the  property  of  the  great  mass  of  the  community  origi- 
nates in  it,  it  becomes  the  law  of  the  land  and  can  not  be  questioned.  So,  too, 
with  respect  to  the  concomitant  principle,  that  the  Indian  inhabitants  are  to  be 
considered  merely  as  occupants,  to  be  protected,  indeed,  while  in  peace,  in  the 
possession  of  their  lands,  but  to  be  deemed  incapable  of  transferring  the  abso- 
lute title  to  others.  However  this  restriction  may  be  opposed  to  natural  right 
and  the  usages  of  civilized  nations,  yet  if  it  be  indispensable  to  that  system 
under  which  the  country  has  been  settled,  and  be  adapted  to  the  actual  condi- 
tion of  the  two  peoples,  it  may,  perhaps,  be  supported  by  reason  and  certainly 
can  not  be  rejected  by  courts  of  justice. 

In  the  case  of  Cherokee  Nation  v.  State  of  Georgia,  5  Peters,  1, 
16,  decided  in  1831,  the  Supreme  Court  held  that  the  Cherokee  Nation 
was  not  a  "State  "  within  the  meaning  of  the  provision  of  the  Con- 
stitution of  the  United  States  giving  the  court  jurisdiction  in  con- 
troversies in  which  a  State  of  the  United  States  or  the  citizens  there- 


28        THE   QUESTION   OF   ABORIGINES  IN   THE   LAW   OF   NATIONS. 

of  and  a  foreign  State,  citizens  or  subjects  thereof,  are  parties.    The 
court,  speaking  by  Chief  Justice  Marshall,  said: 

The  Indian  Territory  is  admitted  to  compose  a  part  of  tlie  United  States.  In  all 
our  maps,  geographical  treatises,  histories,  and  laws  it  is  so  considered.  In  all  our 
intercourse  with  foreign  nations,  in  our  commercial  relations,  in  any  attempt  at 
intercourse  between  Indians  and  foreign  nations,  they  are  considered  as  within 
the  jurisdictional  limits  of  the  United  States,  subject  to  many  of  those  restraints 
which  are  imposed  upon  our  own  citizens.  They  aclinowledge  themselves  in  their 
treaties  to  be  under  the  protection  of  the -United  States;  they  admit  that  the 
United  States  shall  have  the  sole  and  exclusive  right  of  regulating  the  trade 
with  them  and  managing  all  their  affairs  -as  they  think  proper.     *     *     * 

Though  the  Indians  are  acknowledged  to  have  an  unquestionable  and  there- 
fore unquestioned  right  to  the  lands  they  occupy  until  that  right  shall  be  ex- 
tinguished by  a  voluntary  cession  to  our  Government,  yet  it  may  well  be 
doubted  whether  those  tribes  which  reside  within  the  acknowledged  boundaries- 
of  the  United  States  can,  with  strict  accuracy,  be  denominated  foreign  nations. 
They  may,  more  correctly,  perhaps,  be  denominated  domestic  dependent  na- 
tions. They  occupy  a  territory  to  which  we  assert  a  title  independent  of  their 
will,  which  must  take  effect  in  point  of  possession  when  their  right  of  posses- 
sion ceases.  Meanwhile,  they  are  in  a  state  of  pupilage.  Their  rela- 
tion to  the  United  States  resembles  that  of  a  ward  to  his  guardian. 
They  look  to  our  Government  for  protection ;  rely  upon  its  kindness 
and  its  power;  appeal  to  it  for  relief  to  their  wants;  and  address  the 
President  as  their  great  father.  They  and  their  country  are  considered  by 
foreign  nations  as  well  as  by  ourselves  as  being  so  completely  under  the 
sovereignty  and  dominion  of  the  United  States  that  any  attempt  to  acquire  their 
lands,  or  to  form  a  political  connection  with  them,  would  be  considered  by  all 
as  an  invasion  of  our  territory  and  an  act  .of  hostility. 

In  the  report  of  the  British  Parliamentary  Committee  on  Abo- 
riginal Tribes  of  1837,  to  which  reference  has  been  made,  though 
there  was  no  definition  of  the  relationship  of  civilized  States  to 
aboriginal  tribes  under  their  sovereignty  as  that  of  guardianship 
and  tutorship,  the  duties  of  civilized  States  which  it  insisted  upon 
as  arising  out  of  the  relationship  were  precisely  those  of  guardian- 
ship and  tutorship.  They  spoke  of  the  "  responsibility  "  and  "  obli- 
gation" of  Great  Britain,  and  based  thi^  obligation  upon  "the 
ability  which  we  possess  to  confer  upon  them  the  most  important 
benefits,"  and  "  their  inability  to  resist  any  encroachments,  however 
unjust,  however  mischievous,  which  we  may  be  disposed  to  make." 
"  The  disparity  of  the  parties,"  they  said,  "  the  strength  of  one  and 
the  incapacity  of  the  other  to  enforce  the  observance  of  their  rights, 
constitutes  a  new  and  irresistable  appeal  to  our  compassionate  pro- 
tection." 

The  following  letter  written  by  Lord  John  Russell,  as  prime 
minister,  on  August  23,  1840,  to  Sir  George  Gipps,  the  governor  of 
New  South  Wales,  illustrates  the  views  held  by  the  British  Govern- 
ment of  that  day  on  the  subject  of  the  relations  between  Great 
Britain  and  the  aboriginal  tribes  under  its  sovereignty  (British  Pari. 


THE   QUESTION   OF   ABORIGINES   IN    THE   LAW    OF    NATIONS.       29 

Papers,  1844,  Accounts  and  Papers,  vol.  34  (Colonies),  Papers  relat- 
ing to  the  Aborigines,  Australian  Colonies,  pp.  73,  74)  : 

Downing  Street,  25  August,  I84O. 

Sir:  In  my  dispatch  No.  128,  of  the  5th  instant,  I  referred  to  the  proposals 
of  the  Cliurch  Missionary  Society,  and  the  report  of  the  Colonial  Land  and 
Emigration  Commissioners  thereupon,  declining  at  the  same  time  to  furnish 
you  with  positive  instructions  on  the  subject  of  the  aborigines.  In  so  acting, 
however,  I  felt  that  while  it  was  not  expedient  absolutely  to  fetter  your  dis- 
cretion, suggestions  from  Her  Majesty's  Government  for  your  guidance  might 
further  and  promote  the  great  object  in  view. 

T  proceed  now  to  communicate  some  remarks  on  the  report  and  on  the 
general  subject. 

1.  We  should  run  a  risk  of  entire  failure  if  we  should  confound  in  one 
abstract  description  of  aborigines  the  various  races  of  people,  some  half 
civilized,  some  little  raised  above  the  brutes,  some  hunting  over  vast  tracts  of 
country,  others  with  scarcely  any  means  or  habits  of  destroying  wild  animals 
at  all,  who  have  encountered  the  discovering  or  invading  nations  of  Europe 
over  the  face  of  the  globe.  One  tribe  in  Africa  often  differs  widely  in  character 
from  another  at  50  miles  distance;  the  red  Indian  of  Canada  and  the  native 
of  New  Holland  are  distinguished  from  each  other  in  almost  every  respect. 
We,  indeed,  who  come  into  contact  with  these  various  races,  have  one  and  the 
same  duty  to  perform  toward  them  all,  but  the  manner  in  which  this  duty  is 
to  be  performed  must  vary  with  the  varying  materials  upon  which  we  are  to 
work.  No  workman  would  attempt  to  saw  a  plank  of  fir  and  cut  a  block  of 
granite  with  the  same  instrument,  though  he  might  wish  to  form  each  to  the 
same  shape.  You,  however,  who  are  acquainted  with  the  circumstances  in  which 
you  have  to  act  can  decide  in  what  manner  you  can  best  execute  the  intentions 
of  the  Queen's  Government  to  do  justice  and  show  kindness  to  the  natives  of 
the  colony  over  which  you  preside. 

2.  There  appears  to  be  great  difficulty  in  making  reserves  of  land  for  the 
natives,  which  shall  be  really  beneficial  to  them.  Two  sources  of  mischief 
mar  the  most  benevolent  designs  of  this  nature;  the  one  arising  from  the 
inaptitude  of  the  natives  to  change  their  desultory  habits  and  learn  those  of 
settled  industry ;  the  other  from  the  constant  inroad  of  Europeans  to  rob, 
corrupt,  and  destroy  them.  Between  the  native,  who  is  weakened  by  intoxicat- 
ing liquors,  and  the  European,  who  has  all  the  strength  of  superior  civilization 
and  is  free  from  its  restraints,   the  unequal  contest  is  generally  of  no  long 

•duration;  the  natives  decline,  diminish,  and  finally  disappear.  The  Church 
Missionary  Society  propose,  in  order  to  prevent  these  mischiefs,  that  they 
should  hold  land  in  Wellington  Valley  in  trust  for  the  natives  and  that  all 
interference  on  the  part  of  other  settlers  should  be  prevented.  To  the  remarks 
of  the  commissioners  on  this  plan  I  would  only  add  that  it  might  be  useful 
and  would  certainly  be  just  to  engage  to  the  missionaries  that  if  the  Crown 
should  think  proper  at  any  time  to  resume  the  land  in  Wellington  Valley  a 
full  compensation  or  allowance  shall  be  made  to  the  society  for  all  improve- 
ments which  they  may  have  made  of  a  permanent  character.  Anything  which 
can  be  done  without  violation  of  principle  to  induce  the  Church  Missionary 
Society  to  continue  their  work  should  be  done.  Nothing  can  be  more  painful 
or  more  laborious  or  more  dangerous  than  to  take  up  a  post  in  the  midst  of  a 
race  of  suspicious,  ignorant,  and  indolent  savages  and  to  defend  their  cause 
and  their  existence  against  rapacious,  violent,  and  armed  Europeans,  yet  such 
is  often  the  position  of  the  missionaries.  None  but  a  strong  feeling  of  religion 
would  induce  good  men  to  undertake  such  a  task.    But  in  giving  such  men  all 


30        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF    NATIONS. 

encouragement  every  precaution  should  be  taken  against  those  who,  counter- 
feiting the  same  holy  and  religious  zeal,  become  speculators  in  colonial  agri- 
culture and  lose  sight  of  the  sacred  purpose  for  which  alone  they  have  been 
intrusted  with  the  funds  of  the  society. 

3.  The  commissioners  recommend  that  a  small  force  should  be  stationed  for 
the  protection  of  the  missionaries  and  natives.  I  think  it  may  be  advisable  to 
give  the  men  employed  in  this  service  double  pay  and  reduce  them  to  their 
former  service  and  pay  on  any  evidence  of  misconduct. 

4.  The  best  chance  of  preserving  the  unfortunate  race  of  New  Holland  lies 
in  the  means  employed  for  training  their  children.  The  education  given  to 
such  children  should  consist  in  a  very  small  part  of  reading  and  writing.  Oral 
instruction  in  the  fundamental  truths  of  the  Christian  religion  will  be  given  by 
the  missionaries  themselves.  The  children  should  be  taught  early ;  the  boys  to 
dig  and  plough,  and  the  trades  of  shoemakers,  tailors,  carpenters,  and  masons ; 
the  girls  to  sew  and  cook  and  wash  linen,  and  keep  clean  the  rooms  and  fur- 
niture. The  more  promising  of  these  children  might  be  placed,  by  a  law  to  be 
framed  for  this  purpose,  under  the  guardianship  of  the  governor,  and  placed 
by  him  at  a  school,  or  in  apprenticeship,  in  the  more  settled  parts  of  the  colony. 
Thus  early  trained,  the  capacity  of  the  race  for  the  duties  and  employments 
of  civilized  life  would  be  fairly  developed. 

5.  There  remains,  as  connected  with  this  subject,  the  vast  and  perhaps  in- 
superable difficulty  of  the  conflict  carried  on,  with  little  intermission,  between 
the  colonists  and  the  natives.  The  colonist  occupies  a  larger  tract  of  land  than 
he  has  the  means  to  guard ;  his  cattle  stray  and  are  killed  by  the  natives ;  he 
collects  a  force  and  revenges  his  loss  on  the  first  tribe  he  encounters.  Again, 
the  natives,  finding  the  cattle  unwatched,  drive  away  a  herd,  and  deprive  the 
colonist  of  his  wealth ;  a  new  source  of  retaliation  and  bloodshed.  It  is  but  too 
clear  that  the  only  effectual  remedy  for  this  lamentable  evil  is  an  organized 
force  adequate  to  keep  both  parties  in  check  and  confine  each  to  the  limits 
which  the  Government  shall  assign.  But  this  remedy  is  so  expensive  and  re- 
quires so  much  vigilance,  so  much  temper  in  evei*y  soldier  or  constable,  anid 
the  territory  to  be  traversed  is  so  large,  that  it  is  after  all  imperfect. 

6.  I  have  not  yet  touched  on  the  application  of  the  land  fund  to  the  protec- 
tion of  the  aborigines.  It  is  my  opinion  that  15  per  cent  of  the  yearly  produce 
of  sales  should  be  so  applied.  It  will  be  for  you  to  consider  the  details  of  the 
appropriation ;  but  I  must  for  the  future  require  that  on  or  before  the  15th  of 
January  in  every  year  a  report  should  be  made  to  you,  for  the  information  of 
Her  Majesty  and  of  Parliament,  stating  all  the  transactions  of  the  past  year 
relating  to  the  condition  of  the  natives,  their  numbers,  their  residence  at  any 
particular  spot,  the  changes  in  their  social  condition,  the  schools,  and  all  other 
particulars,  including  the  state  and  prospects  of  the  aboriginal  races. 

In  the  case  of  United  States  v.  Rogers,  4  Howard,  567,  decided  in 
1846,  where  the  question  was  as  to  the  jurisdiction  of  the  United 
States  courts  to  punish  crimes  committed  in  the  Indian  Territory 
by  members  of  the  Indian  tribes,  the  Supreme  Court,  speaking  by 
Chief  Justice  Taney,  in  upholding  the  jurisdiction  of  the  court,  said : 

The  country  in  which  the  crime  is  charged  to  have  been  committed  is  a 
part  of  the  territory  of  the  United  States,  and  not  within  the  limits  of  any 
particular  State.  It  is  true  that  it  is  occupied  by  the  tribe  of  Cherokee  Indians. 
But  it  has  been  assigned  to  them  as  a  place  of  domicile  for  the  tribe,  and  they 
hold  and  occupy  it  with  the  assent  of  the  United  States  and  under  their 
authority.     The  native  tribes  who  were  found  on  this  continent  at  the  time 


THE   QUESTION    OF   ABORIGINES   IN    THE   LAW    OF    NATIONS.       31 

of  its  discovery  have  never  been  acknowledged  or  treated  as  independent  na- 
tions by  the  European  Governments,  nor  regarded  as  the  owners  of  the  ter- 
ritories they  respectively  occupied.  On  the  contrary,  the  whole  continent  was 
divided  and  parceled  out,  and  gi*anted  by  the  Governments  of  Europe  as  if 
it  had  been  vacant  and  unoccupied  land,  and  the  Indians  continually  held  to 
be,  and  treated  as  subject  to  their  dominion  and  control. 

It  would  be  useless  at  this  day  to  inquire  whether  the  principle  thus  adopted' 
is  just  or  not,  or  to  speak  of  the  manner  in  which  the  power  claimed  was  In 
many  instances  exercised.  It  is  due  to  the  United  States,  however,  to  say 
that  while  they  have  maintained  the  doctrines  on  this  subject  which  had  been 
previously  established  by  other  nations,  and  insisted  upon  the  same  powers 
and  dominion  within  their  territory,  yet  from  the  very  moment  when  the 
General  Government  came  into  existence  to  this  time,  it  has  exercised  its 
power  over  this  unfortunate  race  in  the  spirit  of  humanity  and  justice,  and  has 
endeavored  by  every  means  in  its  power  to  enlighten  their  minds  and  increase 
their  comforts,  and  to  save  them  if  possible  from  the  consequences  of  their 
own  vices. 

In  the  case  of  United  States  v.  Kagama,  118  U.  S.,  375,  decided 
in  1886,-  a  statute  making  the  murder  of  an  Indian  by  another  In- 
dian on  an  Indian  reservation  within  the  limits  of  a  State  or  Terri- 
tory'a  crime  punishable  by  the  United  States  courts,  was  upheld  as 
an  exercise  of  the  general  sovereignty  of  the  United  States  over  the 
Indian  tribes  as  wards  of  the  Nation.  The  fact  that  the  Indian  reser- 
vation was  in  a  State  was  held  to  he  immaterial,  the  State  having 
been  formed  out  of  territory  originally  belonging  to  the  United 
States.    The  court  said : 

The  relation  of  the  Indian  tribes  living  within  the  borders  of  the  United 
States,  both  before  and  since  the  Revolution,  to  the  people  of  the  United  States 
has  always  been  an  anomalous  one  and  of  a  complex  character. 

Following  the  policy  of  the  European  Governments  in  the  discovery  of 
America  toward  the  Indians  who  were  found  here,  the  Colonies  before  the 
Revolution  and  the  States  and  the  United  States  since  have  recognized  in 
the  Indians  a  possessory  right  to  the  soil  over  which  they  roamed  and  hunted 
and  established  occasional  villages.  But  they  asserted  an  ultimate  title  in  the 
land  itelf,  by  which  the  Indian  tribes  were  forbidden  to  sell  or  transfer  it 
to  other  nations  or  peoples  without  the  consent  of  the  paramount  authority. 
When  a  tribe  wished  to  dispose  of  its  land,  or  any  part  of  it,  or  the  State  or 
the  United  States  wished  to  purchase  it,  a  treaty  with  the  tribe  was  the  only 
mode  in  which  this  could  be  done.  The  United  States  recognized  no  right  in 
private  persons,  or  in  other  nations,  to  make  such  a  purchase  by  treaty  or 
otherwise.  With  the  Indians  themselves  these  relations  are  equally  difficult 
to  define.  They  were,  and  always  have  been,  regarded  as  having  a  semi- 
independent  position  when  they  preserved  their  tribal  relations ;  not  as  States, 
not  as  nations,  not  as  possessed  of  the  full  attributes  of  sovereignty,  but  as  a 
separate  people,  with  the  power  of  regulating  their  internal  and  social  rela- 
tions, and  thus  far  not  brought  under  the  laws  of  the  Union  or  of  the  State 
within  whose  limits  they  resided. 

In  the  opinions  of  these  cases  [Cheroliee  Nation  v.  Georgia,  5  Peters,  1,  ana 
Worcester  v.  State  of  Georgia,  6  Peters,  575],  they  are  spoken  of  as  "wards 
of  the  Nation,"  "pupils,"  as  local  dependent  communities.  In  this  spirit  the 
United  States  has  conducted  its  relations  to  them  from  its  organization  to 


32        THE   QUESTION   OF   ABORIGINES  IN    THE   LAW   OF    NATIONS. 

this  time.  But,  after  an  experience  of  a  hundred  years  of  the  treaty-making 
system  of  government,  Congress  has  determined  upon  a  new  departure — to 
govern  them  by  acts  of  Congress.  This  is  seen  in  the  act  of  March  3,  1871, 
embodied  in  section  2079  of  the  United  States  Statutes: 

"  No  Indian  nation  or  tribe,  within  the  territory  of  the  United  States,  shall 
be  acknowledged  or  recognized  as  an  independent  nation,  tribe,  or  power, 
with  whom  the  United  States  may  contract  by  treaty ;  but  no  obligation  of  any 
treaty  lawfully  made  and  ratified  with  any  such  Indian  nation  or  tribe  prior 
to  March  third,  eighteen  hundred  and  seventy-one,  shall  be  hereby  invalidated 
or  impaired." 

In  upholding  the  validity  of  the  statute,  the  court  said : 

It  does  not  interfere  with  the  process  of  the  State  courts  within  the  reser- 
vation, nor  with  the  operation  of  State  laws  upon  white  people  found  there. 
Its  effect  is  confined  to  the  acts  of  an  Indian  of  some  tribe,  of  a  criminal  char- 
acter, committed  within  the  limits  of  the  reservation. 

It  seems  to  us  that  this  is  within  the  competency  of  Congress.  The  Indian 
tribes  are  the  wards  of  the  Nation.  They  are  communities  dependent  on  the 
United  States,  dependent  largely  for  their  daily  food,  dependent  for  their  politi- 
cal rights.  They  owe  no  allegiance  to  the  States,  and  receive  from*  them  no 
protection.  Because  of  the  local  ill  feeling,  the  people  of  the  States  where  they 
are  found  are  often  their  deadliest  enemies.  From  their  very  weakness  and 
helplessness,  so  largely  due  to  the  course  of  dealing  of  the  Federal  Government 
with  them  and  the  treaties  in  which  it  has  been  promised,  there  arises  the 
duty  of  protection,  and  with  it  the  power.  This  has  always  been  recognized 
by  the  Executive  and  by  Congress,  and  by  this  court,  whenever  the  question  has 
arisen.     *     *     * 

The  power  of  the  General  Government  over  these  remnants  of  a  race  once 
powerful,  now  weak  and  diminished  in  numbers,  is  necessary  to  their  protec- 
tion as  well  as  to  the  safety  of  those  among  whom  they  dwell.  It  must  exist 
in  that  Government,  because  it  never  has  existed  anywhere  else,  because  the 
theater  of  its  exercise  is  within  the  geographical  limits  of  the  United  States, 
because  it  has  never  been  denied,  and  because  it  alone  can  enforce  its  laws 
on  all  the  tribes. 

In  the  opinion  the  court  likened  the  Indian  tribes  to  municipal 
corporations.    It  said  (pp.  379,  380) : 

These  Indians  are  within  the  geographical  limits  of  the  United  States.  The 
«oil  and  the  people  within  these  limits  are  under  the  political  control  of  the 
United  States,  or  of  the  States  of  the  Union.  There  exist  within  the  broad 
domain  of  sovereignty  but  these  two.  There  may  be  cities,  counties,  and  other 
organized  bodies  with  limited  legislative  functions,  but  they  are  all  derived 
from  or  exist  in  subordination  to  one  or  the  other  of  these.  The  territorial 
governments  owe  all  their  powers  to  the  statutes  of  the  United  States  con- 
ferring on  them  the  powers  which  they  exercise  and  which  are  liable  to  be 
withdrawn,  modified,  or  repealed  at  any  time  by  Congress.  *  *  *  This 
power  of  Congress  to  organize  territorial  governments  and  make  laws  for  their 
inhabitants  arises  not  so  much  from  the  clause  in  the  Constitution  in  regard  to 
disposing  of  and  making  regulations  concerning  the  territory  and  other  prop 
erty  of  the  United  States  as  from  the- ownership  of  the  country  in  which  the 
Territories  are  and  the  right  of  exclusive  sovereignty,  which  must  exist  in  the 
•National  Government  and  can  be  found  nowhere  else.  Murphy  v.  Ramsey, 
114  U.  S.,  15,  44.     *     *     * 


THE   QUESTION    OF   ABORIGINES  IN    THE   LAW    OF    NATIONS.       33 

The  Indian  reservation  in  the  case  before  us  is  land  bought  by  the  United 
States  from  Mexico  by  the  treaty  of  Guadaloupe  Hidalgo,  and  the  whole  of 
California,  with  the  allegiance  of  its  inhabitants,  many  of  whom  were  Indians, 
was  transferred  by  that  treaty  to  the  United  States. 

In  the  case  of  Cherokee  Nation  v.  Southern  Kansas  Eailway  Com- 
pany, 135  IT.  S.,  641,  decided  in  1889,  the  court  held  that  the  United 
States  had  eminent  domain  in  the  Cherokee  Keservation  for  grant- 
ing a  right  of  way  to  a  railroad.  Speaking  of  the  Cherokee  Indians, 
the  court  said  : 

From  the  beginning  of  the  Government  to  the  present  time  they  have  been 
treated  as  "  wards  of  the  Nation,"  "  in  a  state  of  pupilage,"  "  dependent  political 
communities." 

After  considering  the  treaties  with  these  Indians,  the  court  said : 

Neither  these  nor  any  previous  treaties  evinced  any  intention  upon  the  part 
of  the  Government  to  discharge  them  from  their  condition  of  pupilage  or 
dependency  and  constitute  them  a  separate,  independent,  sovereign  people,  with 
no  superior  within  its  limits. 

In  the  Matter  of  Heff,  197  U.  S.,  488,  decided  in  1905,  the  court 
held  that  an  Indian  who  by  legislative  action  of  the  United  States 
had  been  emancipated  from  its  guardianship  as  a  member  of  the 
tribe,  was  no  longer  amenable  to  the  special  laws  regarding  Indians. 

In  the  opinion  it  was  said : 

Of  late  years  a  new  policy  has  found  expression  in  the  legislation  of  Con- 
gress— a  policy  which  looks  to  the  breaking  up  of  tribal  relations,  the  estab- 
lishing of  the  Indians  in  individual  homes,  free  from  national  guardianship  and 
charged  with  all  the  rights  and  obligations  of  citizens  of  the  United  States. 
Of  the  power  of  the  Government  to  carry  out  this  policy  there  can  be  no  doubt. 
It  is  under  no  constitutional  obligation  to  i)erpetually  continue  the  relationship 
of  guardian  and  ward.  It  may  at  any  time  abandon  its  guardianship  and  leave 
the  ward  to  assume  and  be  subject  to  all  the  privileges  and  burdens  of  one 
8ui  juris.  And  it  is  for  Congress  to  determine  when  and  how  that  relation- 
ship shall  be  abandoned.  It  is  not  within  the  power  of  the  court  to  overrule 
the  judgment  of  Congress.  It  is  true  there  may  be  a  presumption  that  no 
radical  departure  is  intended,  and  courts  may  wisely  insist  that  the  purpose  of 
Congress  be  made  clear  by  its  legislation,  but  when  that  purpose  is  made  clear, 
the  question  is  at^an  end. 

*  *  *  *  o  ♦  * 

But  it  is  contended  that  although  the  United  States  may  not  punish  under 
the  police  power  the  sale  of  liquor  within  a  State  by  one  citizen  to  another, 
it  has  such  power  if  the  purchaser  is  an  Indian.  And  the  power  to  do  this 
is  traced  to  that  clause  of  the  Constitution  which  empowers  Congress  "  to  regu- 
late commerce  with  foreign  nations,  and  among  the  several  States-,  and  with 
the  Indian  tribes."  It  is  said  that  commerce  with  the  Indian  tribes  includes 
commerce  with  the  members  thereof,  and  Congress  having  power  to  regulate 
commerce  between  white  men  and  the  Indians  retains  that  power,  although  it 
has  provided  that  the  Indian  shall  have  the  benefit  of  and  be  subject  to  the 
civil  and  criminal  laws  of  the  State  and  shall  be  a  citizen  of  the  United  States. 
But  the  logic  of  this  argument  implies  that  the  United  States  can  never  release 

89581—19 3 


34       THE  QUESTION   OF  ABORIGINES  IN  THE  LAW  OF   NATIONS. 

itself  from  the  obligation  of  guardianship ;  that  so  long  as  an  individual  is  an 
Indian  by  descent,  Congress,  although  it  may  have  granted  all  the  rights  and 
privileges  of  national  and  therefore  State  citizenship,  the  benefits  and  burdens 
of  the  laws  of  the  State,  may  at  any  time  repudiate  this  action  and  reassume 
its  guardianship,  and  prevent  the  Indian  from  enjoying  the  benefit  of  the  laws 
of  the  State,  and  release  him  from  obligations  of  obedience  thereto.  Can  it  be 
that  because  one  has  Indian  and  only  Indian  blood  in  his  veins,  he  is  to  be 
forever  one  of  a  special  class  over  whom  the  General  Government  may  in  its 
discretion  assume  the  rights  of  guardianship  which  it  has  once  abandoned,  and 
this  whether  the  State  or  the  individual  himself  consents?  We  think  the  reach 
to  which  this  argument  goes  demonstrates  that  it  is  unsound. 

In  the  case  of  Tiger  v.  Western  Investment  Company,  221  U.  S., 
286,  decided  in  1911,  a  provision  of  the, United  States  statutes  giving 
the  Secretary  of  the  Interior  supervision  over  conveyances  of  land 
made  by  Indians,  was  held  constitutional. 

The  court,  after  a  full  examination  of  the  authorities  said  (p.  315)  : 

Taking  these  decisions  together,  it  may  be  taken  as  the  settled  doctrine  of 
this  court  that  Congress,  in  pursuance  of  the  long-established  policy  of  the  Gov- 
ernment, has  a  right  to  determine  for  itself  when  the  guardianship  which  has 
been  maintained  over  the  Indian  shall  cease.  It  is  for  that  body,  and  not  the 
courts,  to  determine  when  the  true  interests  of  the  Indian  require  his  release 
from  such  condition  of  tutelage. 

The  privileges  and  immunities  of  Federal  citizenship  have  never  been  held 
to  prevent  governmental  authority  from  placing  such  restraints  upon  the  con- 
duct or  property  of  citizens  as  is  necessary  for  the  general  good.  Incompetent 
persons,  though  citizens,  may  not  have  the  full  right  to  control  their  persons 
and  property.  The  privileges  and  immunities  of  citizenship  were  said,  in  the 
Slaughter  House  Cases  (16  Wall,  36,  76),  to  comprehend  protection  by  the 
Government,  with  the  right  to  acquire  and  possess  property  of  every  kind,  and 
to  pursue  and  obtain  happiness  and  safety,  subject,  nevertheless  to  such  re- 
straints as  the  Government  may  prescribe  for  the  general  good  of  the  whole. 

In  the  case  of  Perrin  v.  The  United  States,  232  U.  S.,  478,  decided 
in  1914,  the  Supreme  Court  held  that  Congress  has  power  to  pro- 
hibit the  introduction  of  intoxicating  liquors  into  an  Indian  reserva- 
tion wheresoever  situated,  and  to  prohibit  trafSc  in  such  liquors  with 
tribal  Indians  whether  upon  or  off  a  reservation,  and  whether  within 
or  without  the  limits  of  a  State. 

The  court  said  (p.  486)  : 

As  the  power  [of  Congress  in  dealing  with  the  Indian  wards  and  adopting 
measures  for  their  protection]  is  incident  only  to  the  presence  of  the  Indians 
and  their  status  as  wards  of  the  Government,  it  must  be  conceded  that  it  does 
not  go  beyond  what  is  reasonably  essential  to  their  protection,  and  that,  to  be 
effective,  its  exercise  must  not  be  purely  arbitrary,  but  must  be  founded  upon 
some  reasonable  basis.  *  *  *  q^  the  other  hand,  it  must  also  be  conceded 
that,  in  determining  what  is  reasonably  essential  to  the  protection  of  the  In- 
dians, Congress  is  invested  with  a  wide  discretion,  and  its  action,  unless  purely 
arbitrary,  must  be  accepted  and  given  full  effect  by  the  courts. 

In  the  case  of  Woodward  v.  de  Graffenried,  238  U.  S.,  284,  decided 
in  1915,  the  Supreme  Court  reviewed  at  length  the  proceedings  of 


THE   QUESTION   OF  ABORIGINES  IN   THE  LAW   OF   NATIONS.       35 

Congress  from  1893  to  that  date  looking  to  the  abolition  of  the  tribal 
title  to  the  lands  in  the  Indian  reservations  assigned  to  the  tribes  by 
the  United  States,  especially  the  action  of  the  so-called  "  Dawes  Com- 
mission," and  the  act  of  Congress  of  June  28,  1898,  resulting  from 
the  labors  of  that  comniission,  known  as  the  Curtis  Act.  Of  this  act 
the  court  said  (p.  306)  : 

The  manifest  purpose  of  this  act  was  not  to  displace  but  to  recognize  the 
communal  titles,  and  to  administer  the  use  of  lands  for  the  equal  benefit  of 
the  members  of  the  tribes  according  to  the  true  intent  and  meaning  of  the 
early  treaties;  the  effect  being  to  do  what  the  tribal  governments  ought  to 
have  done  but  were  failing  to  do. 

In  the  case  of  Williams  v.  Johnson,  239  U.  S.,  414,  decided  in  1915, 
the  court,  in  construing  an  act  of  Congress  relating  to  allotment  of 
Indian  tribal  lands,  said  (p.  420)  : 

It  has  often  been  decided  that  the  Indians  are  wards  of  the  Nation  and  that 
Congress  has  plenary  control  over  tribal  relations  and  property,  and  that  this 
power  continues  after  the  Indians  are  made  citizens,  and  may  be  exercised 
as  to  restrictions  upon  alienation. 

In  the  case  of  United  States  v.  Nice,  241  U.  S.,  591,  decided  in  1916, 
the  Supreme  Court,  in  holding  constitutional  the  act  of  Congress  of 
January  30,  1897,  prohibiting  the  sale  of  liquor  to  allottee  Indians, 
said  (pp.  597,  598)  : 

The  power  of  Congress  to  regulate  or  prohibit  traffic  in  intoxicating  liquor 
with  tribal  Indians  within  a  State,  whether  upon  or  off  an  Indian  reserva- 
tion, is  well  settled.  It  has  long  been  exercised  and  has  repeatedly  been  sus- 
tained by  this  court.  Its  source  is  twofold :  First,  the  clause  in  the  Constitu- 
tion expressly  investing  Congress  with  power  "  to  regulate  commerce  with  the 
Indian  tribes,"  and  second,  the  dependent  relation  of  such  tribes  to  the  United 
States. 

Of  the  first  it  was  said  in  United  States  v.  HoUiday,  3  Wall.,  407 :  *  *  * 
"  Commerce  with  the  Indian  tribes  means  commerce  with  the  individuals  com- 
posing those  tribes.  *  *  *  rpj^^  locality  of  the  traffic  can  have  nothing  to 
do  with  the  power.  The  right  to  exercise  it  in  reference  to  any  Indian  tribe, 
or  any  person  who  is  a  member  of  such  tribe,  is  absolutely  without  reference 
to  the  locality  of  the  tribe,  or  of  the  member  of  the  tribe  with  whom  it  is 
carried  on.  *  *  *  This  power  residing  in  Congress,  that  body  is  necessarily 
supreme  in  its  exercise." 

And  of  the  second  it  was  said  in  Uhited  States  v.  Kagama,  118  U.  S.,  375,  383 : 
"These  Indian  tribes  are  the  wards  of  the  Nation.  They  are  communities 
dependent  upon  the  United  States.  *  *  *  prom  their  very  weakness  and 
helplessness,  so  largely  due  to  the  course  of  dealing  of  the  Federal  Government 
with  them  and  the  treaties  in  which  it  has  been  promised,  there  arises  the 
duty  of  protection,  and  with  it  the  power." 

What  was  said  in  these  cas^s  has  been  repeated  and  applied  in  many  others. 

Of  course,  when  the  Indians  are  prepared  to  exercise  the  privileges  and  bear 
the  burdens  of  one  sui  juris,  the  tribal  relation  may  be  dissolved  and  the 
national  guardianship  brought  to  an  end,  but  it  rests  with  Congress  to  de- 
termine when  and  how  this  shall  be  done,  and  whether  the  emancipation  shall 
at  first   be   complete  or   only   partial.     Citizenship  is   not   incompatible   with 


36        THE   QUESTION   OF  ABORLGINES  IN   THE  LAW   OF   NATIONS. 

tribal  existence  or  continued  guardianship,  and  so  may  be  conferred  without 
completely  emancipating  the  Indians  or  placing  them  beyond  the  reach  of 
congressional  regulations  adopted  for  their  protection. 

The  principle  that  the  relationship  between  a  civilized  State  and 
the  aboriginal  tribes  under  its  sovereignty  is  analogous  to  that  be- 
tween a  guardian  and  his  ward  is  accepted  and  acted  upon  by  all 
civilized  States.  This  will  more  fully  appear  from  the  authorities 
cited  in  the  following  chapters. 

In  countries  unsuited  for  extensive  colonization  by  the  citizens 
of  civilized  States,  the  modern  practice  of  nations,  wiiile  fully  recog- 
nizing that  the  civilized  State  exercising  the  sovereignty  over  a 
region  has  a  plenary  power  of  guardianship  over  the  aborigines, 
which  it  may  exercise  directly  if  it  sees  fit,  tends  to  maintain  the 
power  of  the  tribal  organization  and  to  utilize  these  forms  for  the 
purposes  of  its  paternal  and  tutorial  government.  Sir  H.  H.  John- 
ston, the  British  commissioner  to  make  a  settlement  of  the  Govern- 
ment of  the  Uganda  Protectorate,  after  the  conquest  and  the  sub- 
mission of  King  Mwanga,  in  1894,  thus  described  the  measures 
adopted  for  utilizing  the  tribal  organizations  as  the  nuclei  of  future 
administrative  districts  or  States: 

We  should  aim  at  the  establishment  of  an  administration  over  the  Uganda 
Protectorate  economical  and  yet  efficient.  The  natives,  especially  those  speak- 
ing Bantu  languages — because  these  Bantu  peoples  consist  of  settled  agricul- 
turists— should  be  assisted  and  encouraged  to  govern  themselves  as  far  as  pos- 
sible without  too  much  interference  on  the  part  of  European  officials.  The 
presence  of  this  European  element  in  the  administration  should  be  restricted, 
as  far  as  possible,  to  the  administration  of  justice  to  foreigners,  the  collection 
of  revenue,  the  regulation  of  finance,  the  management  of  railways  and  steam- 
ers, the  supervision  of  public  works,  and  the  direction  of  scientific  enterprise 
in  connection  with  the  resources — animal,  vegetable,  and  mineral— of  the  Pro- 
tectorate. For  instance,  by  the  agreement  of  March  10,  1900,  the  Kingdom  of 
Uganda,  which  is  equivalent  to  the  Uganda  Province,  is  divided  into  20  dis- 
tricts or  counties.  Each  district  or  county  is  placed  under  the  administration, 
so  far  as  native  affairs  are  concerned,  of  a  chief  appointed  by  the  King  of 
Uganda,  but  requiring  to  have  his  appointment  confirmed  by  the  principal  rep- 
resentative of  His  Britannic  Majesty's  Government.  These  20  chiefs  are  under 
the  control  of  the  King  of  Uganda,  who  is  assisted  in  his  Government  by  a 
native  council  or  parliament  elected  on  lines  laid  down  by  the  British  Govern- 
ment. The  power  of  life  and  death  is  reserved  to  the  principal  representative 
of  His  Britannic  Majesty  in  the  Uganda  Protectorate,  who  may  also  intervene 
when  it  is  necessary  to  modify  excessive  punishments  of  any  kind.  The  taxa- 
tion was  limited  by  the  same  agreement  to  a  hut  and  gun  tax.  These  taxes 
are  collected  by  the  chiefs  of  the  districts  and  handed  over  to  the  European 
officials.  The  King,  native  ministers,  and  subsidiary  chiefs  of  districts  re- 
ceive their  subsidies  or  salaries  direct  from  the  British  Government  and  are  not 
allowed  to  exact  further  payments  from  their  native  subjects.  Almost  similar 
arrangements  now  exist  in  the  countries  of  Toro,  Ankola,  and  Busoga,  and 
parts  also  of  the  Nile  and  the  eastern  Provinces.  Throughout,  the  native  King 
or  chief  is  encouraged  to  govern  his  people  directly  on  humane  principles,  with 


THE   QUESTION    OF   ABORIGINES  IN    THE   LAW    OF    NATIONS.       37 

only  that  amount  of  interference  from  the  nearest  European  official  as  may 
protect  the  natives  from  injustice  or  cruelty.  In  this  way  it  may  be  hoped 
that  each  district  need,  as  a  general  rule,  only  require  the  appointment  of  a 
British  collector  and  assistant  collector  so  far  as  local  government  and  the  col- 
lection of  revenue  are  concerned.  The  Protectorate,  from  a  civil  point  of  view, 
is  divided  into  six  Provinces,  and  these  jigaiu  into  numerous  districts.  With  the 
exception  of  the  divisions  of  the  Province  of  Uganda  (which  in  some  cases  are 
small  in  area),  the  average  size  of  a  district  is  an  area  of  about  5,000  square 
miles.  In  the  eastern  districts  of  the  Protectorate,  where  the  population  is 
less  settled  and  less  inclined  to  civilization  than  the  Bantu-speaking  peoples  of 
the  west  and  center,  the  representative  of  the  British  administration  is  obliged 
to  do  a  great  deal  more  in  connection  with  the  direct  government  of  the  natives 
than  is  the  case  where  exist  well-recognized  native  rulers,  such  as  the  Kings 
of  Uganda,  Toro,  and  Ankole,  or  the  chiefs  of  Kavirondo,  Busoga,  and  parts 
of  the  Nile  Province.  Even  here,  however,  as  in  the  case  of  the  Masai,  w^e  are 
striving  to  induce  the  .members  of  one  homogeneous  tribe  to  recognize  a  single 
chief  as  their  supreme  ruler  so  far  as  native  administration  is  concerned.  We 
are,  in  fact,  endeavoring  to  teach  the  natives  to  govern  themselves,  without  top 
much  interference  from  us,  within  the  limits  of  law  and  order  and  a  regard  for 
the  principles  of  civilization.  The  Government  naturally  dissociates  itself  from 
partisanship  in  matters  of  religion.  It  has  been  necessary,  however,  to  define  in 
some 'countries  districts  which  shall  be  or  remain  under  Mohammedan  direc- 
tion, and  others  which  shall  be  governed  by  Christian  chiefs,  following  either 
the  Anglican  or  the  Roman  forms  of  Christian  faith.  (Brit.  Pari.  Papers,  1901, 
vol.  48,  Cd.  671.) 

Where  aboriginal  tribes  are  located  in  a  country  suitable  for  perma- 
nent settlement  by  citizens  of  civilized  States,  the  modern  practice 
is  to  discourage  tribal  organization  and  to  deal  with  the  aborigines 
as  individuals  under  guardianship. 


CHAPTER  lY. 

THE   RELATION   BETWEEN   THE  POWER  OVER  ABORIGINAL  TRIBES   AND   THE 
POWER  OVER    COLONIES    GENERALLY. 

In  order  to  determine  the  relation,  between  the  power  which  a 
civilized  State  exercises  over  the  aboriginal  tribes  under  its  sov- 
ereignty and  that  which  it  exercises  over  all  its  colonies  and  depend- 
encies it  is  necessary  to  examine  the  law  and  practice  in  force  in 
each  of  the  colonizing  States  concerning  the  administration  of  all 
its  colonies  and  dependent  communities.    Such  a  survey  follows. 

THE    UNITED    STATES. 

The  Constitution  of  the  United  States  (Art.  I,  sec.  8),  in  its  enu- 
meration of  the  "  legislative  "  powers  granted  to  the  Congress,  makes 
no  special  mention  of  power  over  colonies  and  dependencies.  By 
this  section,  however,  Congress  is  given  the  power  to  raise  and 
support  an  army  and  navy  and  declare  war — powers  which  from 
their  nature  may  result  in  the  acquisition  of  territory,  inhabited  or 
uninhabited,  and  the  administration  of  it  and  its  inhabitants.  In 
Article  IV,  which  contains  a  delegation  to  Congress  of  the  special 
powers  incidental  to  the  sovereignty  of  the  United  States  which  are 
not  strictly  "legislative,"  Congress  is  granted  power  (sec.  3)  "to 
dispose  of  and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States  "  and  "  to 
admit  new  States  into  the  Union." 

The  President  (Art.  II,  sees.  1  and  2)  is  given  "the  executive 
power,"  and  the  power  to  make  treaties  by  and  with  the  consent  of 
the  Senate,  and  he  is  made  Commander  in  Chief  of  the  Army  and 
Navy — powers  which  in  connection  with  the  powers  of  Congress 
above  mentioned,  apply  in  the  acquisition  of  territory  inhabited  and 
uninhabited,  and  also  in  the  administration  of  the  territory  and  its 
inhabitants,  at  least  during  the  time  that  it  is  subjected  to  military 
government  or  to  civil  government  under  military  rule. 

In  a  long  series  of  cases,  beginning  with  that  of  American  In- 
surance Co.  V.  Canter,  1  Peters,  511,  and  ending  with  the  case  of 
Downes  v.  Bidwell,  182  U.  S.,  244,  the  Supreme  Court  has  held  that 
the  United  States,  by  the  law  of  nations,  and  as  incidental  to  its 
sovereignty,  has  power  to  acquire  and  administer  territory  and  popu- 
lations outside  its  domestic  territory  and  population  in  any  manner 
38 


THE   QUESTION    OF   ABORIGINES  IN    THE   LAW   OP   NATIONS.       39 

permitted  by  the  law  of  nations — by  discovery,  occupation,  cession, 
or  conquest — and  that  the  constitutional  provisions  above  mentioned 
are  recognitions  and  declarations  of  this  power  and  specifications 
determining  the  relations  and  powers  of  the  organs  of  the  Govern- 
ment of  the  United  States  in  exercising  the  power. 

Moreover,  it  has  held  that  the  powers  of  the  United  States,  in 
making  the  fundamental  dispositions  of  jurisdiction  and  soil,  as  the 
basis  of  local  administration  and  private  ownership  of  the  land,  are, 
according  to  the  law  of  nations,  political  powers  with  no  limitations 
except  that  they  must  be  exercised  to  promote  the  fundamental  prin- 
ciples of  democracy,  republicanism,  and  equality  of  opportunity 
which  are  the  basis  of  the  American  governmental  system.  It  has 
also  held  that  as  respects  the  dispositions  relating  to  the  social  rela- 
tionsliips  of  the  inhabitants  of  acquired  territory,  involving  the 
fundamental  rights  of  the  individual  to  life,  liberty,  and  the  pursuit 
of  happiness,  the  power  of  the  United  States,  under  the  law  of 
nations,  is  to  be  exercised  by  applying  all  the  provisions  of  the  Con- 
stitution which  can  reasonably  and  beneficially  be  applied,  taking 
into  consideration  the  needs  of  the  local  populations. 

The  Supreme  Court  has  also  held  that  the  power  which  the  United 
States  has,  by  the  law  of  nations  and  its  Constitution,  over  all  colonies 
and  dependencies  is  "  plenary  "  for  the  accomplishment  of  the  object 
sought  to  be  obtained.  (Binns  v.  United  States,  194  U.  S.,  486.) 
These  objects  can  only  be,  and  are,  the  extension  of  democracy,  re- 
publicanism, and  equality  of  opportunity.  "  Plenary  "  power  is  the 
power  which  an  agent  has  w^ho  is  delegated  to  accomplish  a  certain 
object,  and  whose  mandate  is  limited  only  by  the  needs  of  the  situa- 
tion. An  agent  with  plenary  power — an  agent  plenipotentiary — 
represents  the  principal  with  full  power  to  do  all  which  the  principal 
might  reasonably  do  in  the  accomplishment  of  the  object  intended. 
Plenary  power  is  not  absolute  power,  but  power  limited  to  the  needs 
of  the  situation.  It  implies  that  the  supreme  organs  of  the  United 
States  for  exercising  the  power  of  the  United  States — its  Congress, 
its  President,  its  Supreme  Court — acting  for  the  United  States,  in 
fulfilling  its  fiduciary  relationship  under  the  law  of  nations  respect- 
ing its  colonies  and  dependencies,  have  full  powers  to  do  all  which 
the  United  States  might  reasonably  and  legally  do  under  the  laAV  of 
nations,  consistently  with  fundamental  principles  of  its  Constitution 
and  the  fundamental  principles  of  human  society  recognized  by  all 
civilized  States. 

As  the  Constitution  contains  a  Bill  of  Rights  imposing  certain 
prohibitions  or  conditions  upon  the  action  of  all  the  organs  of  the 
Central  Government  respecting  individuals  under  the  sovereignty 
of  the  United  States,  all  of  the  provisions  of  this  Bill  of  Rights, 
which  are  of  universal  application,  are  applicable  in  all  the  colonies 


40       THE   QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

and  dependencies  of  the  United  States  from  the  moment  of  their 
acquisition. 

The  Supreme  Court  has  approved,  as  applicable  to  all  places  un- 
der American  sovereignty,  a  formulation  of  the  fundamental  and 
universal  principles  of  the  Constitution  protecting  the  individual 
against  governmental  action  in  violation  of  the  fundamental  rights- 
of  life,  libert}^,  and  the  pursuit  of  happiness.  This  statement  of  prin- 
ciples thus  constitutes  a  fundamental  bill  of  rights  of  all  the  inhabi- 
tants of  the  colonies  and  dependencies  of  the  United  States,  legally 
limiting  the  United  States  in  the  exercise  of  its  plenary  powers  to 
administer  these  regions  and  their  populations.  As  it  is  needful  to 
apply  all  these  principles  in  the  fulfillment  of  the  agency,  this  state- 
ment in  no  way  interferes  with  the  plenary  powers  of  the  United 
States  in  this  respect.  This  statement,  formulated  by  the  President 
through  the  Secretary^  of  War  in  1900,  was  originally  promulgated 
in  the  instructions  of  April  7,  1900,  to  the  Philippine  Commission. 
It  was  substantially  followed  by  Congress  in  the  Philippines  govern- 
ment act  of  July  1,  1902,  and  was  approved  by  the  Supreme  Court  as 
a  general  or  universal  bill  of  rights  in  Kepner  v.  United  States,  195 
U,  S.,  100,  122,  123.    The  preamble  and  statement  are  as  follows: 

In  all  the  forms  of  government  and  administrative  provisions  which  they  are 
authorized  to  prescribe,  the  commission  should  bear  in  mind  that  the  govern- 
ment which  they  are  establishing  is  designed  not  for  our  satisfaction  or  for  the 
expression  of  our  theoretical  views,  but  for  the  happiness,  peace,  and  prosperity 
of  the  people  of  the  Philippine  Islands ;  and  the  measures  adopted  should  be 
made  to  conform  to  their  customs,  their  habits,  and  even  their  prejudices  to  the 
fullest  extent  consistent  with  the  accomplishment  of  the  indispensable  requisites 
of  just  and  effective  governmentv 

At  the  same  time  the  commission  should  bear  in  mind  and  the  people  of  the 
islands  should  be  n^ade  plainly  to  understand  that  there  are  certain  great  prin- 
ciples of  government  which  have  been  made  the  basis  of  our  governmental  sys- 
tem, which  we  deem  essential  to  the  rule  of  law  and  the  maintenance  of  indi- 
vidual freedom,  and  of  which  they  have  unfortunately  been  denied  the  experi- 
ence possessed  by  us ;  that  there  are  also  certain  practical  rules  of  government 
which  we  have  found  to  be  essential  to  the  preservation  of  these  great  principles 
of  liberty  and  law ;  and  that  these  principles  and  these  rules  of  government  must 
be  established  and  maintained  in  their  islands  for  the  sake  of  their  liberty  and 
happiness,  however  much  they  may  conflict  with  the  customs  or  laws  or  pro- 
cedure with  which  they  are  familiar.     *     *     * 

Upon  every  division  and  branch  of  the  government  of  the  Philippines,  there- 
fore, must  be  imposed  these  inviolable  rules : 

That  no  person  shall  be  deprived  of  life,  liberty,  or  property  without  due 
process  of  law ; 

That  private  property  shall  not  be  taken  for  public  use  without  jhst  com- 
pensation ; 

That  in  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  to  be  informed  of  the  nature  and  cause  of  the  accusation,  to 
be  confronted  with  the  witnesses  against  him,  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of  counsel  for  his 
defence; 


THE   QUESTION   OF   ABOBIGINES  IN    THE   LAW    OP    NATIONS.       41 

That  excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor 
cruel  and  unusual  pilnishment  inflicted ; 

That  no  person  shall  be  put  twice  in  jeopardy  for  the  same  offence  or  be 
compelled  in  any  criminal  case  to  be  a  witness  against  himself ; 

That  the  right  to  be  secure  against  unreasonable  searches  and  seizures  shall 
not  be  violated ; 

That  neither  slavery  nor  involuntary  servitude  shall  exist  except  as  a  punish- 
ment for  crime ; 

That  no  bill  of  attainder  or  ex  post  facto  law  shall  be  passed ; 

That  no  law  shall  be  passed  abridging  the  freedom  of  speech  or  of  the  press 
or  the  right  of  the  people  to  peaceably  assemble  and  petition  the  Government 
for  a  redress  of  grievances ; 

That  no  law  shall  be  made  respecting  an  establishment  of  religion  or  pro- 
hibiting the  free  exercise  thereof;  and 

That  the  free  exercise  and  enjoyment  of  religious  profession  and  worship, 
without  discrimination  or  preference,  shall  forever  be  allowed. 

The  Congress,  by  special  legislation,  makes  such  dispositions  of 
jurisdiction  and  soil  in  the  colonies  and  dependencies  as  it  deems 
proper,  and  also  such  rules  and  regulations  concerning  civil  rights  of 
person  and  property  as  it  may  deem  needful,  subject  to  the  constitu- 
tional limitations  above  mentioned.  During  the  period  of  acquisition 
and  pacification  the  Congress  delegates  plenary  powers  to  the  Presi- 
dent, who  conducts  military  government,  or  civil  government  under 
military  rule,  until  the  pacification  is  complete.  The  Congress  then 
provides  for  each  colony  or  dependency  an  organic  law,  which  forms 
the  written  constitution  of  the  particular  colony  or  dependency,  dele- 
gating to  the  local  administration  such  powers  as  it  deems  needful. 
In  the  organic  law,  or  by  subsequent  amendments,  or  by  special  laws, 
the  Congress  regulates  all  such  matters  as  it  deems  needful  to  so  regu- 
late; and  the  action  of  Congress,  within  the  constitutional  limita- 
tions, is  the  supreme  law-  of  the  land  for  each  colony  or  dependency. 
The  Congress,  after  pacification,  delegates  to  the  President  such 
powers  as  it  sees  fit,  it  apparently  being  the  doctrine  at  the  present 
time  that  the  grant  of  "  the  executive  power  "  to  the  President  does 
not  include  a  sublegislative  powder,  under  the  superintendence  of  the 
legislature,  over  the  colonies  and  dependencies,  for  the  fulfillment 
of  the  fiduciary  relationship  of  the  United  States  toward  them.  (Cf. 
Lincoln  v.  United  States,  202  U.  S.,  484.) 

It  is  accepted  without  question  that  the  grant  of  "  the  judicial 
power  "  of  the  United  States  to  the  Supreme  Court  and  such  inferior 
courts  as  the  Congress  may  from  time  to  time  ordain  and  establish 
(Art.  Ill,  sec.  1),  and  the  definition  of  the  judicial  power  as  extend- 
ing to  cases  "  arising  under  the  Constitution,  the  law  of  the  United 
States,  or  treaties  "  (Art.  Ill,  sec.  2),  authorizes  the  Supreme  Court 
and  the  courts  established  by  Congress  to  hear  and  determine  cases 
involving  the  relations  wdth  or  matters  arising  in  the  colonies  and 
dependencies,  and  authorizes  Congress  to  establish  a  court  or  courts 


42        THE   QUESTION   OF   ABORIGINES  IN   THE   LAW   OF    NATIONS. 

in  the  United  States  having  appellate  jurisdiction  over  the  courts  in 
colonies  or  dependencies. 

Alaska  and  Hawaii  have  a  status  similar  to  that  of  the  former 
"  organized  Territories  "  contiguous  to  the  Union,  and  are  in  charge 
of  the  Secretary  of  the  Interior,  the  education  of  the  aborigines 
being  under  the  direction  of  the  Bureau  of  Education;  the  Philip- 
pines, Porto  Rico,  and  San  Domingo  (the  latter  during  the  "  cus- 
toms receivership  ")  are  in  charge  of  the  Secretary  of  War,  through 
the  Bureau  of  Insular  Affairs ;  the  Panama  Ganal  Zone  is  in  charge 
of  the  Panama  Ganal  Office  in  Washington ;  and  the  Virgin  Islands, 
Tutuila,  Guam,  the  Wake  Islands,  and  Midway  Island  are  in  charge 
of  the  Secretary  of  the  Navy. 

By  the  original  Philippines  Government  act  of  July  1,  1902,  the 
non- Christian  aboriginal  tribes  in  the  Philippines  were  placed  under 
the  exclusive  jurisdiction  of  the  Philippine  Commission.  By  the 
act  of  August  29,  1916,  this  jurisdiction  is  transferred  to  the  Philip- 
pine legislature,  these  tribes  being  represented  in  the  Philippine 
senate  by  senators  appointed  at  large  by  the  governor-general.  The 
act  also  prescribes  the  maintenance  of  a  Bureau  of  Non-Christian 
Tribes.  This  bureau  is  under  the  direction  of  the  Philippine  secretary 
of  the  interior. 

GREAT  BRITAIN. 

In  Great  Britain  the  accepted  doctrine  seems  to  be  that  the  Par- 
liament of  Great  Britain  has  supreme  legislative  powxr  without  legal 
limitation,  not  only  within  the  domestic  territory  of  the  State,  but 
over  and  within  all  the  colonies  and  dependencies,  and  that  by  cus- 
tom Parliament  exercises  this  power  according  to  certain  traditional 
fundamental  principles,  within  limitations  determined  by  itself  and 
according  to  its  views  of  the  local  needs  and  the  requirements  of  the 
general  welfare.  This  doctrine  was  declared  by  act  of  Parliament  as 
respects  the  American  Colonies  in  1766.  B}^  the  declaratory  act 
passed  simultaneously  with  the  act  repealing  the  stamp  act  it  was 
asserted  as  the  fundamental  principle  of  the  relationship  between 
Great  Britain  and  the  Colonies  that  the  Parliament  "  had,  hath,  and 
of  right  ought  to  have,  full  power  and  authority  to  make  laws  and 
statutes  of  sufficient  force  and  validity  t(>  bind  the  Colonies  and 
people,  subjects  of  the  Crown  of  Great  Britain,  in  all  cases  whatso- 
ever." The  question  between  Great  Britain  and  the  Colonies,  as  it 
was  finally  formulated  in  1T76,  was  whether  Great  Britain  had  a 
power  of  supreme  legislation  over  them  in  all  cases  whatsoever — a 
legally  unlimited  power — or  a  plenary  power  as  the  agent  and  fidu- 
ciary of  the  Colonies  to  legislate  as  might  be  needful  to  preserve  a 
mutually  beneficial  relationship  between  all  parts  of  the  Empire  and 
between  the  Empire  and  the  rest  of  the  world.     Great  Britain  in 


THE   QUESTION"   OF  ABORIGINES  IN   THE   'LAW   OF   NATIONS.       43 

1778  offered  to  adopt  the  American  theory  in  practice  but  was  unwill- 
ing to  accept  it  as  a  statement  of  the  law  of  nations.  This  has  ap- 
parently ever  since  been  the  position 'taken  by  Great  Britain.  The 
supreme  legislative  power  of  Great  Britain  over  its  colonies  and  de- 
pendencies is  in  fact  exercised  as  it  would  be  if  it  wereTCCognized  as  a 
fiduciary  power  limited  by  the  British  constitution  and  the  law  of 
nations  to  the  needs  of  the  situation,  but  plenary  for  the  accomplish- 
ment of  the  object  of  all  colonization,  which  is  the  extension  of  civili- 
zation ;  but  though  in  fact  so  exercised,  it  is  still  regarded  as  exercised 
under  limitations  which  are  not  imposed  by  any  law  but  which  are 
wholly  self-imposed. 

Alpheus  Todd,  in  his  book  on  "  Parliamentary  Government  in  the 
British  Colonies,"  makes  the  following  statements  regarding  the 
power  of  Parliament  over  the  colonies  and  dependencies  (pp.  26, 
172) : 

As  a  matter  of  abstract  right,  the  mother  country  has  never  parted  with  the 
claim  of  ultimate,  supreme  authority  for  the  imperial  legislature.     *     *     * 

The  colonial  possessions  of  the  British  Crown,  however  acquired  and  what- 
ever may  be  their  political  constitution,  are  subject  at  all  periods  of  their  exist- 
ence to  the  legislative  control  of  the  imperial  Parliament.  But  in  practice, 
especially  in  the  case  of  colonies  enjoying  representative  institutions  and 
responsible  government,  the  mother  country,  in  deference  to  the  principle  of 
self-government,  has  conceded  the  largest  possible  measure  of  local  Independ- 
ence and  practically  exerts  its  supreme  authority  only  in  cases  of  necessity  or 
when  imperial  interests  are  at  stake. 

The  power  of  the  British  King  in  council  (the  British  Crown) 
respecting  the  administration  of  the  colonies  is  held  to  be  a  legally 
limited  power.  The  legal  limitations  under  which  the  King  in 
council  acts  in  the  administration  of  colonies  and  dependencies  under 
the  British  constitution  and  the  law  of  nations  were  declared  in 
1774  by  the  Court  of  King's  Bench,  speaking  by  Chief  Justice  Mans- 
field, in  the  test  case  of  Campbell  v.  Hall,  Cowper,  204.  In  that  case 
it  was  held  that  the  King  in  council  had  legislative  power  over  and 
in  the  colonies  and  dependencies,  but  that,  inasmuch  as  this  power 
was  "subordinate  to  his  own  authority  as  a  part  of  the  supreme 
legislature,"  he  was  legally  limited  in  the  exercise  of  this  power,  so 
that  he  could  not  make  any  law  for  any  colony  or  dependency,  by 
order  in  council  or  otherwise,  which  was  "  contrary  to  fundamental 
principles  "  or  which  should  attempt  to  make  any  exception  "  from 
the  law^s  of  trade  or  the  authority  of  Parliament "  or  to  grant  "  privi- 
leges exclusive  of  his  other  subjects."  It  was  also  held  that  the 
subordinate  legislative  power  of  the  King  in  council  ceased  altogether 
as  respects  a  given  colony  at  the  moment  this  colony  received  a 
charter  providing  for  its  self-government  under  representative  insti- 
tutions, even  though  this  charter  was  itself  granted  by  order  in 
council. 


44        THE   QUESTION    OF   ABORIGINES  IN    THE   LAW   OF   NATIONS. 

Mr.  Todd,  in  the  book  above  mentioned,  thus  describes  the  power 
of  the  King  in  council  over  the  colonies  and  dependencies  (pp.  125- 
128)  : 

The  right  of  the  Crown,  as  the  supreme  executive  authority  of  the  Empire, 
to  control  all  legislfition  which  is  enacted  in  the  name  of  the  Crown  in  any  part 
of  the  Queen's  dominions  is  self-evident  and  unquestionable.     *     *     * 

In  respect  of  the  colonies,  the  royal  veto  upon  legislation  has  always  been 
an  active  and  not  a  dormant  power.  The  reason  of  this  is  obvious.  A  colony  is 
but  a  part  of  the  Empire,  occupying  a  subordinate  position  in  the  realm.  No 
colonial  legislative  body  is  competent  to  pass  a  law  which  is  at  variance  with 
or  repugnant  to  any  imperial  statute  which  extends  in  its  operation  to  the 
particular  colony.  Neither  may  a  colonial  legislature  exceed  the  bounds  of  its 
assigned  jurisdiction  or  limited  powers.  Should  such  an  excess  of  authority 
be  assumed,  it  becomes  the  duty  of  the  Crown  to  veto  or  disallow  the  illegal 
or  unconstitutional  enactment.     *     *     * 

The  Crown,  moreover,  is  the  chief  executive  authority  of  the  Empire  and 
the  instrument  for  giving  effect  to  the  national  will,  as  the  same  has  been 
embodied  in  the  acts  of  the  imperial  Parliament  or  sanctioned  by  Parliament 
upon  the  advice  of  responsible  ministers.     *     *     * 

Furthermore,  the  Crown  occupies  toward  the  colonial  •  dependencies  of  the 
Empire  a  paternal  relation,  which,  at  least  in  the  earlier  stages  of  their 
political  existence,  justifies  and  requires  that  the  mature  experience  and  en- 
larged political  insight  of  the  statesmen  who  guide  public  affairs  in  the  mother 
country  should  be  utilized  to  the  benefit  of  their  fellow  subjects  in  the  col- 
onies \Vhile  they  are  gradually  attaining  to  a  knowledge  of  the  practical 
business  of  legislation  in  their  limited  sphere.     *     *     * 

It  is  evident  that  the  prerogative,  by  virtue  of  which  the  Crown  is  authorized 
to  supervise  and  control  the  acts  of  all  subordinate  legislatures  throughout 
the  Empire,  is  held  for  the  especial  benefit  of  the  colonies  as  well  as  for 
the  security  of  the  nation  at  large.     *     *     * 

Subject,  however,  to  the  constitutional  oversight  and  discretion  of  the  Crown — 
by  which  all  colonial  legislation  is  liable  to  be  controlled  and  annulled,  if  exer- 
cised unlawfully  or  to  the  prejudice  of  other  parts  of  the  Empire — complete 
powers  of  legislation  appertain  to  all  duly  constituted  colonial  governments. 
Every  local  legislature,  whether  created  by  charter  from  the  Crown  or  by 
imperial  statute,  is  clothed  with  supreme  authority,  within  the  limits  of  the 
colony,  to  provide  for  the  peace,  order,  and  good  government  of  the  inhabitants 
thereof.  This  supreme  legislative, authority  is  subject,  of  course,  to  the  para- 
mount supremacy  of  the  imperial  Parliament  over  all  minor  and  subordinate 
legislatures  within  the  Empire. 

The  judicial  power  of  Great  Britain,  which  by  the  British  consti- 
tution is  regarded  as  vested  in  the  British  Crown,  is,  so  far  as  su- 
preme jurisdiction  in  cases  of  a  legal  nature  arising  in  the  colonies 
or  out  of  the  colonial  relationship  are  concerned,  vested  in  a  judicial 
committee  of  the  privy  council.  Mr.  Todd  says,  regarding  this 
tribunal  (pp.  220,  221)  : 

The  sovereign,  as  the  fountain  of  justice,  is  constitutionally  competent  to 
receive  petitions  and  appeals  from  all  her  colonies  and  possessions  abroad, 
upon  whatever  regulations  and  conditions  may  be  defined  and  imposed  by 
the  authority  of  the  Crown  in  council. 


THE   QUESTION    OF   ABORIGINES  IN    THE    LAW   OF   NATIONS.       45 

Such  petitions  or  appeals  are  referred  to  the  consideration  either  of  the 
judicial  committee  of  the  privy  council,  or  of  some  other  committee  of  that 
body,  upon  whose  report  the  decision  of  the  sovereign  is  pronounced.  The  ref- 
erence may  be  made  either  upon  appeal  from  an  inferior  colonial  court  or  on  a 
petition  or  claim  of.  right  or  on  a  petition  praying  for  the  redress  of  a 
grievance  that  is  not  within  the  prescribed  jurisdiction  of  other  courts  or 
departments  of  state  but  which  the  Crown  is  willing  to  entertain. 

The  organic  acts  for  colonies  and  dependencies  may  be  made  by 
order  in  council  or  by  statute  of  the  Britsh  Parliament.  An  organic 
law  made  by  statute  necessarily  supersedes  any  charter  granted  by 
order  in  council.  The  organic  laws  of  the  Dominion  of  Canada,  the 
Commonwealth  of  Australia,  and  the  Union  of  South  Africa  were 
made  by  such  statutes. 

Aboriginal  tribes  in  non-self-governing  colonies  and  in  the  other 
dependencies  are  under  the  administration  of  the  Crown  by  orders 
in  council  or  by  regulations  made  by  the  local  governors  under 
authority  delegated  to  them  by  order  in  council  and  subject  to  super- 
vision and  disapproval  by  the  Crown.  In  several  of  the  British  col- 
onies the  office  of  protector  of  the  aborigines  has  been  instituted, 
the  office  being  in  some  cases  conferred  on  a  single  official  and  in 
others  on  a  commission  or  board.  These  officials  or  boards  have  in 
some  cases  been  made  responsible  to  the  home  Government,  in  some 
cases  to  the  governor,  in  some  cases  to  both.  While  this  arrangement 
has  not  been  without  some  good  results,  the  conclusion  seems  to  be 
that  in  non-self-governing  colonies  the  concentration  of  responsibil- 
ity for  the  aborigines  in  the  hands  of  the  home  Government,  act- 
ing through  the  colonial  secretary  and  the  local  governor,  works  for 
their  best  interests.  This  arrangement  involves  great  care  in  the 
selection  of  those  colonial  governors  who  have  to  deal  with  aboriginal 
tribes,  so  that  they  shall  be  humane,  sympathetic,  and  at  the  same 
time  firm;  the  delegation  to  them  of  plenary  power;  and  the  sup- 
port of  them  by  an  armed  constabulary  force  adequate  to  enable 
them  to  enforce  their  just  commands  with  certainty  and  promptness 
and  thus  to  preserve  the  dignity  and  prestige  of  the  State  as  at  once 
the  guardian  and  the  sovereign. 

Self-governing  colonies  insist  upon  managing  their  own  relations 
with  the  aboriginal  tribes,  claiming  this  right  under  the  law  of 
nations  as  an  incident  of  self-government.  This  principle  was  finally 
settled  in  1898  in  the  case  of  Western  Australia.  (Correspondence 
relating  to  the  Aborigines,  Western  Australia,  British  Parliamentary 
Papers,  1897,  vol.  6,  Cd.  8350;  ib.,  1899,  vol.  55,  Cd.  5743.) 

In  the  early  days,  under  self-government  in  the  Australian  colonies, ' 
the  aborigines  were  substantially  extinguished,  and  in  the  colonies 
of  southern  Africa  the  contact  betweenthe  Europeans  and  the  aborigi- 
nal tribes  would  doubtless  have  been  equally  disastrous  for  the  latter 


46        THE  QUESTION   OF  ABORIGINES  IN   THE  LAW   OF   NATIONS. 

had  not  their  numbers  and  the  nature  of  the  climatic  conditions  per- 
mitted them  to  survive.  The  aboriginal  tribes  of  New  Zealand  suf- 
fered severely  in  their  contact  with  the  self-governing  colonies  there. 
In  modern  times  it  would  appear  the  self-governing  British  colonies 
have  accepted  with  seriousness  the  responsibility  of  guardianship  of 
aborigines  with  regard  to  which  plenary  power  is  now  delegated, 
and  have  taken  carefully  deliberated  and  suitable  measures  to  fulfill 
their  duties  in  this  respect.  (See  British  Parliamentary  Papers  since 
1895.    Native  Affairs  in  the  Kespective  Colonies,  passim.) 

Modern  publicists  in  Great  Britain  and  in  its  colonies  tend,  with 
increasing  emphasis,  to  regard  the  relationship  of  the  State  to  its 
colonies  and  dependencies  as  having  a  jural  character  not  wholly  or 
even  principally  determined  by  the  British  constitution.  The  rela- 
tionship is  commonly  spoken  of  as  a  "  trusteeship  "  for  the  colonies^ 
and  the  necessary  implication  is  that  this  trusteeship  arises  under  a 
law.  This  law  can  only  be  the  law  of  nations  or  a  constitutional 
law  which  the  British  Empire  itself  has  evolved  as  distinct  from  the 
constitution  of  Great  Britain.  (The  Administration  of  Dependen- 
cies, by  Alpheus  H.  Snow,  pp.  532-536.) 

TRANCE. 

In  France,  by  the  constitution  of  1791,  the  colonies  were  declared 
not  to  be  "comprised  in  the  constitution."  By  the  constitution  of 
1794  they  were  declared  to  be  "  integral  parts  of  the  Republic  "  and 
"  subject  to  the  same  constitutional  law."  The  constitution  of  1800 
provided  that  "  the  regime  of  the  colonies  shall  be  determined  by 
special  laws."  In  1802  the  French  Legislature  delegated  all  this 
power  to  the  Napoleon  by  a  statute  which  provided  that  "  the  regime 
of  the  colonies  is  submitted  for  ten  years  to  the  regulations  which 
shall  be  made  by  the  Government."  The  constitution  of  1814  pro- 
vided that  "  the  colonies  shall  be  ruled  by  particular  laws  or  regula- 
tions." In  the  constitution  of  1830  it  was  provided  that  "the  colo- 
nies shall  be  governed  by  particular  laws."  In  the  constitution  of 
1848  the  provision  was  as  follows : 

The  territory  of  Algeria  and  the  colonies  is  declared  French  territory,  and 
shall  be  ruled  by  particular  laws  until  a  special  law  places  it  under  the  regime 
of  the  present  constitution. 

(The  Administration  of  Dependencies,  by  Alpheus  H.  Snow,  pp. 
474-479.) 

The  constitution  of  1852,  under  the  third  Empire,  provided  (art» 
27)  that  the  Senate  should  "  regulate  by  a  senatus-consulte  the  con- 
stitution of  the  colonies."  The  Senate  (art.  25)  was  made  "the 
guardian  of  the  fundamental  pact  and  the  public  liberties."  It  was 
required   (art.  26)   "to  oppose  itself  to  the  promulgation  of  laws 


THE   QUESTION   OF   ABOEIGINES  IIT   THE   LAW   OF   NATIONS.       47 

repugnant  to  or  inconsistent  with  the  constitution,  or  with  religion, 
morality,  liberty  of  worship,  individual  liberty,  the  equality  of 
citizens  before  the  law,  the  inviolability  of  property,  or  the  principle 
of  the  unremovability  of  magistrates.'' 

The  Emperor  (art.  6)  was  declared  to  be  the  chief  of  the  State, 
with  power  "to  command  the  land  and  sea  forces,  to  declare  war, 
make  treaties  of  peace,  alliance,  and  commerce,  to  name  all  officials, 
and  to  make  regulations  and  decrees  for  the  execution  of  the  laws." 
{Bulletin  des  Lois,  1852,  V^  semestre,  p.  60.) 

By  a  senatus- consult e  of  1854,  the  Senate,  with  the  concurrence  of 
the  Emperor,  made  an  organic  law  for  Martinique,  Guadaloupe,  and 
Reunion,  by  which  these  colonies  (sees.  4  and  6)  were  placed  in  some 
respects  under  the  regime  of  senatus -consultes,  and  in  some  respects 
under  the  control  of  the  Emperor,  his  power  being  exercised  by  regu- 
lations. The  other  colonies  (sec.  18)  were  to  be  regulated  b^^  decrees 
of  the  Emperor,  "until  there  shall  have  been  a  determination  in 
respect  to  them  made  by  senatus-consultey 

As  the  constitutional  laws  of  France  passed  since  the  beginning 
of  the  Republic  in  1875  have  not  made  any  provision  concerning 
administration  of  the  colonies  and  dependencies,  the  principles  estab- 
lished by  the  constitution  of  1852  have  been  ever  since  followed. 

Arthur  Girault,  in  an  introduction  to  the  collection  of  the  organic 
laws  of  the  French  colonies  in  Lois  Organiques  des  Colonies,  pub- 
lished in  1906  by  the  Institut  Colonial  International  of  Brussels  (pp. 
14-16),  says: 

As  respects  the  colonies  of  the  first  grade  {grandes  colonies),  this  senatus- 
consulte  gives  certain  guaranties,  since  it  specifies  the  cases  in  which  a  law  or 
a  senatus-consulte  shall  be  necessary  to  effect  legislation  concerning  them. 
Moreover,  it  grants  to  each  of  them  a  council  general,  whose  powers  in  financial 
and  tariff  matters  were  largely  increased  by  the  senatus-consulte  of  July  4, 
1866.  *  *  *  As  regards  the  secondary  establishments,  no  guaranty  is  ac- 
corded to  them ;  they  are  subjected  in  an  absolute  manner  to  the  regime  of  de- 
crees.    (Art.  18  of  the  s^natus-conBulte  of  1854.) 

Guiana,  which  it  was  desired  to  make  a  penal  colony,  passed  in  1854  from  the 
category  of  colonies  of  the  first  grade  into  that  of  secondary  establishments. 
This  second  category  was  soon  enlarged  by  reason  of  the  acquisition  of  New 
Caledonia  and  Cochin  China.  At  the  same  time  Senegal  was  extended  into  the 
interior.  Hence  arose  an  anomaly  which  has  become  more  emphasized  under 
the  third  Republic,  and  which  constitutes  the  great  vice  {le  grand  vice)  of  the 
legislative  regime  of  the  French  colonies — little  islands,  considered  as  colonies 
of  the  first  grade,  enjoy  guaranties  refused  to  immense  territories  treated  by 
legislation  as  secondary  establishments. 

Referring  to  the  establishment  of  the  ministry  of  the  colonies  by 
statute  of  the  French  Parliament  in  1894,  and  the  subsequent  tend- 
ency toward  government  without  constitutional  guaranties,  he  says : 

Attention  was  turned  toward  the  three  great  parts  of  our  colonial  empire— 
Indo-China,  Madagascar,  and  French  West  Africa.  At  the  head  of  each  of 
these  colonies  was  placed  a  governor  general,  to  whom  was  granted  a  very 


48        THE   QUESTION   OF   ABORIGINES   IN    THE   LAW   OF    NATIONS. 

great  power  of  initiative,  and  very  extensive  powers,  without  counterpoise.  This 
system  of  government  lias  succeeded  tlius  far  by  reason  of  tlie  liigli  cliaracter 
of  the  men  whom  the  Government  of  the  Republic  has  made  in  some  sense  vice- 
roys. But  it  has  the  possibility  of  becoming  singularly  dangerous  in  the  future. 
The  organization  of  the  immense  colonies  acquired  under  the  third  Republic 
is  contained  entirely  in  the  decrees  promulgated  under  section  18  of  the  s4natus- 
consulte  of  1854,  which  has  reference  to  secondary  establishments.  The  s6natus- 
consulte  of  1854,  although  it  has  lost  its  constitutional  validity  since  the  fall  of 
the  Empire,  has  always  remained  in  force,  the  Chambers  not  having  voted  a  con- 
stitution for  the  colonies.  There  is  thus  a  very  serious  hiatus  (lacune)  [in 
French  public  law]  ;  the  regime  of  decrees  offering  no  guaranty  against  arbitrary 
rule.  Unfortunately  there  has  never  been  up  to  this  time  any  serious  discus- 
sion in  regard  to  supplying  the  omission. 

The  French  Parliament,  though  it  abstains  by  a  constitutional 
custom  from  interposition  by  statute  in  the  administration  of  col- 
onies and  dependencies,  exercises  a  considerable  supervision  by  reason 
of  its  control  of  financial  legislation  and  the  exercise  of  the  right  of 
interpellation  of  ministers. 

By  statute  of  the  French  Parliament  of  February  24,  1875,  Mar- 
tinique, Guadaloupe,  Reunion,  and  French  India  were  given  each  a 
senator  in  the  French  Senate.  By  the  law  of  June  16,  1885,  Cochin 
China  was  given  two  deputies  in  the  lower  house  of  France,  Guada- 
loupe two,  French  Guiana  one,  French  India  one,  Martinique  two, 
Reunion  two,  and  Senegal  two.  (Lois  Organiques  den  Colonies^  pub- 
lished by  the  Institut  Colonial  International^  1906,  vol.  2,  pp.  44,  45.) 

There  is  attached  to  the  office  of  the  minister  for  the  colonies  a 
superior  council  for  the  colonies,  composed,  according  to  the  decree 
of  September  19, 1896,  of  two  senators  and  two  representatives  of  the 
self-governing  colonies,  representatives  of  the  chambers  of  commerce 
in  the  leading  cities  of  France,  and  certain  specified  high  officials 
in  the  colonial  and  foreign  offices. 

The  ancient  doctrine  that  the  colonies  and  dependencies  are  out- 
lying provinces  or  territories  of  the  State  seems  still  to  be  accepted 
by  official  France.  The  differences  between  the  administration  of  the 
domestic  territory  and  population  of  France  and  that  of  the  colonies 
and  dependencies  are  attributed  to  differences  in  the  local  circum- 
stances. The  French  writers  until  recently  have  regarded  the  rela- 
tionship of  the  colonies  and  dependencies  to  France  as  wholly  a  con- 
stitutional one  and  have  not  considered  it  as  a  relationship  under  the 
law  of  nations.  There  are  signs,  however,  that  this  doctrine  is  being 
undermined  by  criticism  and  that  it  is  to  be  sooner  or  later  sup- 
planted by  one  more  correct  and  scientific.  Thus,  for  example,  Jules 
Harbord,  in  his  book  on  Domination  et  Colonisation^  published  in 
1910,  contends  that  the  power  exercised  by  France  outside  its  do- 
mestic territory  is  a  power  of  domination,  which,  by  reason  of  its 
absolutistic  nature,  can  be  exercised  by  a  republic  as  a  matter  of 


THE   QUESTION   OF  ABOKIGINES  IN   THE   LAW   OP   NATIONS.       49 

right  only  in  case  the  republic  recognizes  that  its  absolutism  implies 
a  fiduciary  relationship  and  actively  engages  itself  in  the  education 
and  guidance  of  the  people  of  the  colonies  and  dependencies  so  as 
to  develop  the  aborigines  and  bring  about  an  association  between 
them  and  the  colonists  on  terms  just  to  both.  There  are  in  France 
several  modern  writers  who  adopt  this  line  of  reasoning  concerning 
the  nature  of  the  power  of  a  State  over  its  colonies  and  dependencies. 
These  writers  treat  the  relationship  of  a  State  to  the  aboriginal  tribes 
as  a  manifestation  of  its  general  fiduciary  relationship  to  all  its 
colonies  and  dependencies, .  the  trusteeship  increasing  in  intensity 
with  respect  to  aborigines  and  becoming  a  guardianship  by  reason 
of  their  greater  needs. 

THE    NETHERLANDS. 

In  the  Netherlands  the  constitution  (arts.  61  and  62)  provides  as 
follows : 

The  King  exercises  the  supreme  administration  (opperbestuur)  of  the  colo- 
nies and  possessions  of  the  Kingdom  in  the  other  parts  of  the  world.  Rules  con- 
cerning the  governmental  administration  of  these  countries  are  prescribed  by 
statute.  Their  monetary  system  is  regulated  by  statute.  Other  questions  con- 
cerning the  colonies  and  possessions  are  regulated  by  statute  when  there  appears 
to  be  need  for  such  action. 

Each  year  the  King  causes  to  be  presented  to  the  States  General  a  detailed 
report  regarding  the  administration  of  the  colonies  and  possessions  and  the 
situation  of  each  of  them.  The  method  of  administering  and  auditing  the  finan- 
<,'ial  resources  are  regulated  by  statute. 

(Lois  Oi'ganiques  des  Colonies  (Lnstitut  Colonial  International),  vol.  3,  p.  145.) 

For  the  Netherlands  East  Indies  the  States  General  have  established 
an  organic  law  {Regeerings-Reglement) .  This  law,  in  132  articles, 
was  enacted  in  1854:  and  is  still  in  force  substantially  unaltered.  The 
States  General  also  adopted  at  about  the  same  time  an  organic  law 
ior  Surinam  in  169  articles,  which,  with  amendments  made  in  1884, 
1901,  and  1903,  is  still  in  force.     (76.,  pp,  146-330.) 

The  King,  in  making  ordinances,  acts  through  a  minister  of  the 
<3olonies  and  by  his  advice  and  that  of  the  other  members  of  the  Cabi- 
net. The  relations  with  the  aborigines  in  the  Netherlands  East  Indies 
are  for  the  most  part  regulated  by  the  governor  general,  acting  with 
the  advice  of  a  local  council,  called  the  Council  of  the  Indies.  This 
council  is  chosen  by  the  King  and  acts  under  regulations  made  by 
him.  Its  sessions  may  i)e  private  or  public.  The  governor  general  is 
obliged  to  consult  the  council  as  respects  certain  specified  important 
matters  and  may  call  them  into  consultation  on  any  subject.  (75., 
138,  139,  152, 169.) 

BELGIUM. 

The  Belgian  constitution  of  1830  made  no  mention  of  colonies,  and 
so  long  as  it  remained  in  force  it  was  doubted  whether  Belgium  could 
89581—19 4 


50        THE  QUESTION   OF  ABOEIGINES  IN   THE  LAW   OF   NATIONS. 

acquire  and  govern  possessions  beyond  the  seas.    By  the  constitution 
of  1893  it  was  provided  (art.  1 )  as  follows : 

The  colonies,  ovei'seas  possessions,  or  protectorates  which  Belgium  may  ac- 
quire are  regulated  by  special  statutes.  Belgian  troops  intended  for  the  defense 
of  such  regions  can  be  recruited  only  by  voluntary  engagement.  {U Organisa- 
tion Coloniale  Beige,  by  Charles  de  Lannoy,  1913,  p.  17.) 

M.  de  Lannoy  asserts  that  the  effect  of  the  provision  of  the  consti- 
tution above  quoted  is  "  that  the  colonies  do  not  have  the  benefit  of 
the  constitutional  guaranties,"  and  that  "a  Belgian  statute  is  ap- 
plicable in  the  colonies  only  when  made  so  applicable  by  a  decision  of 
the  legislative  body,  which,  is  in  fact  itself  a  colonial  statute." 

Belgium  acquired  the  independent  State  of  the  Congo  as  a  colony 
on  September  9,  1908,  and  simultaneously  the  Legislature  enacted  an 
organic  law  for  Belgian  Congo  called  "  the  colonial  charter."  (Ib.y 
p.  16.    For  text  of  the  charter  see  the  same  volume,  pp.  289-303.) 

The  colonial  charter  declares  that  the  Belgian  Congo  has  "  a  per- 
sonality distinct  from  that  of  [Belgium]."  It  allows  the  colony  to 
use  the  flag  and  seal  of  the  Independent  State  of  the  Congo.  (/&., 
pp.  289,  303.) 

M.  de  Lannoy  thus  describes  the  organs  of  legislation  of  Belgian 
Congo  and  their  functions : 

Article  7  of  the  colonial  charter  proclaims  that  statutes  [enacted  by  the  Bel- 
gian Legislature]  are  the  supreme  law  on  every  subject  [with  which  they  deall 
la  lot  intervient  souverainement  en  toute  mati^re.  But  this  does  not  mean  that 
the  Parliament  must  itself  enact  the  multifarious  laws  which  the  government 
of  a  colony  requires.  *  *  *  As  the  delegates  of  the  Belgian  Nation,  it  is  for 
deputies  and  senators  to  intervene  in  the  affairs  of  Belgian  Congo  only  to  the 
extent  that  the  interests  of  their  constituents  require — that  is  to  say,  to  the  ex- 
tent that  the  acts  of  the  colonial  administraion  may  engage  Belgium  financially 
or  morally.  If  they  go  beyond  that,  they  transform  themselves  into  adminis- 
trators and  undertake  a  task  which  persons  who  make  it  their  career  are  far 
better  fitted  to  perform. 

It  is  then  not  contrary  to  the  principles  of  representative  parliamentary  gov- 
ernment, and  it  is  indispensable  to  the  success  of  colonization  to  give  to  the  chief 
executive  plenary  powers  and  consequently  to  add  to  those  which  he  exercises 
in  the  domestic  territory  of  the  nation  the  legislative  power,  reserving  to  the 
Parliament  the  right  of  intervening  to  safeguard,  in  a  given  case,  the  interests 
of  the  nation.  This  is  the  system  adopted  by  Belgium,  as  also  by  the  majority 
of  the  colonizing  powers.  "  The  King,"  says  article  7  of  the  colonial  charter, 
*'  exercises  the  legislative  power  by  way  of  decrees,  except  as  respects  those  sub- 
jects which  have  been  regulated  by  statute."     *     *     * 

The  King  must,  therefore,  exercise  in  person  the  legislative  power  which  is 
delegated  to  him.  The  only  exception  is,  that  he  may  authorize  the  governor 
general,  though  only  when  the  matter  is  urgent,  to  suspend  teinporarily  the 
execution  of  decrees  and  make  ordinances  having  the  force  of  law. 

Speaking  of  the  colonial  council,  which  is  established  by  the  colonial 
charter  to  advise  the  King  in  making  decrees,  M.  de  Lannoy  says : 


THE   QUESTION    OF   ABORIGINES  IN    THE   LAW   OF    NATIONS.       51 

The  selection,  organization,  and  operation  of  the  council  are  regulated  as 
follows  (Charter,  arts.  24  and  25;  statutes  of  Mar.  29,  1911,  and  Dec.  9,  1912)  : 

The  colonial  council  is  composed  of  the  minister  of  the  colonies  as  president 
and  14  councilors ;  the  president  having  a  vote,  and  in  case  of  a  tie  the  casting 
vote.  A  vice  president  selected  by  the  King  from  among  the  members  of  the 
^council  presides  in  his  absence.  Eight  councilors  are  selected  by  the  King.  Six 
are  chosen  by  the  legislative  chambers — three  by  the  Senate  and  three  by  the 
Chamber  of  Deputies  by  secret  ballot  and  majority  vote.  One  of  the  councilors 
named  by  the  King  and  one  of  those  named  by  the  two  chambers  alternately 
retires  each  year.  *  *  *  The  functions  of  members  of  the  Chamber  of  Depu- 
ties or  of  the  Senate  are  incompatible  with  their  participation  in*  the  council. 
No  official  of  the  colonial  administration  is  permitted  to  serve  on  it. 

The  council  gives  its  opinion  in  the  form  of  a  reasoned  report,  within  a  time 
fixed  by  its  organic  regulations.  The  report  shows  the  number  of  the  dissen- 
tients and  the  reasons  of  their  dissent. 

The  charter  gives  to  the  council  no  right  *  *  *  to  inform  Parliament  by 
an  annual  report  of  the  comments  which  the  operations  of  the  administration 
and  its  manner  of  executing  the  statutes  may  suggest.  *  *  *  It  is  in  the 
reports  of  the  council  attached  to  decrees  and  its  published  deliberations  and 
resolutions  that  the  representatives  of  the  nation  must  search  for  information  on 
these  subjects. 

The  colonial  charter  (art.  6)  established  a  special  commission  for 
the  protection  of  the  aborigines,  having  as  one  of  its  functions  to 
make  suggestions  to  the  King  regarding  legislation  for  the  aborigines. 
This  council  consists  of  an  indefinite  number  of  persons,  is  presided 
over  by  the  attorney  general  attached  to  the  court  of  appeals  at 
Brussels,  and  is  required  to  meet  at  least  once  a  year.  This  commis- 
sion holds  its  sessions  at  places  determined  by  its  president  and  is 
composed  of  leading  members  of  the  European  part  of  the  popula- 
tion of  the  colony — administrative  officials,  clerg}^men,  judges,  mer- 
chants, and  planters.  Inasmuch  as  the  district  of  Katanga  has 
since  1910  a  government  of  its  own,  so  that  now  ''the  [Belgian] 
Congo  is  divided  into  two  independent  governments,"  the  commis- 
sion tends  not  to  exercise  a  surveillance  over  Katanga,  and  de  Lannoy 
recommends  a  second  commission  having  surveillance  over  that  dis- 
trict exclusively.     (75.,  291,  254-258.) 

The  colonial  charter  (art.  5)  requires  the  governor  general  to  watch 
over  the  mental  and  moral  well-being  of  the  aborigines,  using  the 
language  of  the  Berlin  African  act.  The  function  of  the  King  in 
legislating  for  the  aborigines  is  supplemented  by  the  provision  of 
the  colonial  charter,  which  keeps  alive  a  great  body  of  the  customary 
lav>^  of  the  aboriginal  tribes.    This  provision  (art.  4)  is  as  follows: 

Aborigines  of  Belgian  Congo  who  have  not  been  naturalized  enjoy  the  civil 
rights  which  are  recognized  as  belonging  to  them  by  the  legislation  of  the 
colony  and  by  their  customs,  in  so  far  as  these  customs  are  not  contrary  to 
the  colonial  legislation  or  to  the  public  order.  Aborigines  of  neighboring 
countries  who  have  not  been  naturalized  are  assimilated  to  [those  of  Belgian 
Congo  in  this  respect].     {lb.,  p.  290.) 


52        THE   QUESTION    OF   ABORIGINES  IN    THE   LAW   OF   NATIONS. 

M.  de  Lannoy,  speaking  of  this  part  of  the  colonial  law,  which 
exists  without  the  intervention  of  the  organs  of  the  Belgian  State, 

says : 

The  unwritten  or  customary  law  has  in  Belgian  Congo  a  vast  field  of  action 
It  regulates,  and  will  for  a  long  time  yet  continue  to  regulate,  the  greater  part 
of  the  relations  of  the  aborigines  with  each  other,  and  in  some  cases  the  rela- 
tions between  aborigines  and  nonaborigines.  It  forms  the  ordinary  source  of 
the  civil  law  for  the  aborigines  who  have  not  been  naturalized. 

ITALY. 

In  Italy  the  constitution  makes  no  mentio"h  of  colonies.  It  estab- 
lishes the  method  of  organizing  the  legislature,  executive,  and  judi- 
ciary^, but  does  not  prescribe  their  powers.  (Modern  Constitutions, 
by  W.  F.  Dodd,  vol.  2,  pp.  5-16.) 

In  1882,  when  Italy  first  acquired  possessions  in  eastern  Africa, 
the  Italian  Parliament  enacted  a  statute  giving  these  possessions 
the  name  of  Erythraea,  and  declaring  that  "there  is  hereby  estab- 
lished on  the  west  coast  of  the  Red  Sea  an  Italian  colony  subject  to 
the  sovereignty  of  Italy  {una  colonia  italiana  sottoposto  alia  sovran- 
ita  deW  Italia) ,  the  exact  territory  being  specified.  It  was  provided 
that  all  the  legislative,  administrative,  judicial,  and  economic  affairs 
of  the  colony  should  be  governed  by  royal  or  ministerial  decrees,  ac- 
cording to  the  importance  of  the  subject  matter,  the  regulations  to 
be  such  as  should  be  adapted  to  the  local  conditions,  and  authority 
was  given  to  change  these  rules  according  to  the  results  of  experience. 
It  was  also  provided  that  the  religious  beliefs  and  practices  of  the 
aboriginal  inhabitants  should  be  respected,  and  that  their  personal 
status,  family  and  matrimonial  relations,  succession,  and  all  their 
civil  relations  should  be  regulated  by  their  ow^n  customary  law,  so 
far  as  it  was  not  inconsistent  with  universal  morality  or  the  public 
order,  or  in  violation  of  an  express  act  of  legislation  made  by  the 
Italian  authorities. 

In  1903  a  new  organic  law  .was  passed  by  the  Italian  Parliament. 
By  this  act  a  colonial  council  was  created  in  connection  with  the 
ministry  of  foreign  affairs,  and  the  King,  by  advice  of  the  governor 
of  the  colony  and  the  colonial  council,  was  given  legislative  power 
in  subordination  to  the  Italian  Parliament,  in  all  matters  not  affect- 
ing the  personal  and  family  status  of  Italians.  As  regards  the  ab- 
origines the  following  provision  was  made : 

The  personal  status  of  the  aborigines  and  their  relations  of  private  law  are 
regulated  according  to  the  local  customs,  religions,  and  races.  The  aborigines 
are  to  continue  to  be  subject  to  the  special  penal  law,  based  upon  local  cus- 
toms, except  so  far  as  modifications  shall  be  made  in  this  law  by  decree  of  the 
governor,  containing  a  statement  of  the  reasons  on  which  they  are  based 
(decr^t  motiv^e). 


THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF    NATIONS.       53 

The  colonial  council  was  composed  of  three  members  ex  officio — 
the  under  secretary  of  state  for  foreign  affairs  as  president,  the 
director  of  the  colonial  office,  and  the  commissioner  of  emigration — 
an  officer  of  the  army  or  navy  of  high  rank,  an  official  of  high  rank 
in  the  treasury  department,  and  six  members  "  of  recognized  com- 
petence, who  have  had  administrative  experience,  nominated  by  the 
secretary  of  foreign  affairs  and  elected  by  the  council  of  ministers." 
Provision  was  also  made  for  calling  experts  in  special  matters  to 
sit  in  the  council  without  vote. 

(Lois  Organiques  des  Colomes  {Institut  Colonial  International)  ^ 
vol.  3,  pp.  400-403.) 

SPAIN. 

In  Spain  the  constitution  (art.  89)  provides  as  follows: 

The  colonies  shall  be  governed  by  special  laws,  but  the  Government  is  au- 
thorized to  apply  to  them,  with  the  modifications  which  it  may  think  proper, 
the  laws  promulgated  or  which  may  be  promulgated  for  the  peninsula,  giving 
an  account  to  the  Cortes. 

As  respects  the  power  of  the  King,  it  is  provided  (arts.  50  and 
54)  as  follows : 

The  power  of  executing  the  laws  shall  be  vested  in  the  King,  and  his  au- 
thority shall  oxtend  to  everything  which  conduces  to  the  preservation  of  pub- 
lic order  at  home  and  the  security  of  the  State  abroad,  in  conformity  with  the 
constitution  and  laws. 

The  King  shall  also  have  power  to  issue  decrees,  regulations,  and  instruc- 
tions vv'hich  may  be  conducive  to  the  execution  of  the  laws. 

(Modern  Constitutions,  by  W.  F.  Dodd,  vol.  2,  pp.  210,  210.) 

Of  the  few  remaining  islands  and  colonies  of  Spain  the  Canary 
Islands  have  the  status  of  a  domestic  province  under  a  statute  en- 
acted in  1912.  The  Spanish  colony  on  the  west  coast  of  Africa,  the 
islands  near  the  coast,  and  the  Spanish  zone  in  Morocco  are  gov- 
erned by  decrees  of  the  King,  and  by  regulations  of  the  local  gov- 
ernors under  delegation  of  power  made  by  the  King. 

{Spanisches  Staatsrecht^  by  Adolf o  Posada,  1914,  p.  184.) 

(Statesman's  Year-book,  1918,  pp.  1284-1285.) 

PORTUGAL. 

The  constitution  of  the  Portuguese  Republic,  adopted  in  1911,  pro- 
vides (sees.  67,  84)  as  follows: 

In  the  administration  of  the  overseas  Provinces  the  regime  of  decentraliza- 
tion shall  prevail,  under  special  statutes  adequate  to  the  state  of  civilization  of 
each  of  them  (adequadas  ao  estado  de  civilacao  de  cada  uma  dellas). 

The  first  Congress  of  the  Republic  shall  elaborate  and  enact  the  following  laws : 
*    *    *     (d)  The  organic  laws  of  the  overseas  Provinces. 

(Revue  de  Droit  Public,  vol.  29,  pp.  775-791.) 


54        THE   QUESTION   OF  ABORIGIIN^ES  IN   THE   LAW  OF   NATIONS. 

B}^  article  26  of  this  constitution  the  Congress  of  the  Republic  is 
given  the  exclusive  power  of  "  making  laws,  and  of  interpreting,  sus- 
pending, and  abrogating  them,"  and  by  article  47  the  President  is 
empowered  to  "  make  decrees,  instructions,  and  regulations  necessary 
to  the  proper  execution  of  the  laws  " ;  the  Congress  being  given  also 
the  power  (art.  26)  to  "  sanction  the  regulations  decreed  in  execution 
of  the  laws." 

Marnoco  e  Souza,  in  his  commentaries  on  this  constitution,  pub- 
lished in  1913  (pp.  594-604) ,  in  reference  to  these  provisions,  holds 
that  they  delegate  a  limited  legislative  power  to  the  President  in 
subordination  to  the  Congress,  and  that  the  Congress  may,  by  its  leg- 
islation in  the  form  of  organic  acts,  create  local  representative  legis- 
latures in  the  colonies  or  confer  such  local  legislative  powers  as  it 
may  see  fit  upon  colonial  governors. 

JAPAN. 

The  constitution  of  Japan  contains  no  reference  to  the  administra- 
tion of  colonies. 

(The  Political  Development  of  Japan,  by  G.  E.  Uyehara,  1910,  pp. 
277-284.) 

The  Parliament  enacts  special  laws  for  the  colonies,  including 
organic  acts.  Subject  to  the  supreme  power  of  the  Parliament,  the 
Emperor  has  power  to  decree  ordinances.  In  Formosa,  the  Japanese 
Parliament  has  delegated  the  local  legislative  power  to  the  governor 
general  in  council,  his  ordinances  being  reported  to  the  minister  for 
the  colonies  to  be  laid  before  the  Emperor  for  his  sanction. 

(Japanese  Rule  in  Formosa,  by  Gosaburo  Takikoshi,  1907,  pp.  32, 
37,  232-234.) 

In  Formosa,  the  relations  with  the  aborigines  are  in  charge  of  a 
bureau  of  aboriginal  affairs,  which  has  performed  the  national  duty 
of  guardianship  by  "  a  method  of  pressure  and  conciliation,  alter- 
nately applied." 

(Report  of  the  Bureau  of  Aboriginal  Affairs  of  Formosa  for  1911, 
p.  7.) 

(Japan :  The  Rise  of  a  Modern  Power,  by  Robert  P.  Porter,  1918, 
p.  232.) 


CHAPTEK  Y. 

IHE  RELATION   BETWEEN   THE  POWER  OVER   ABORIGINAL  TRIBES   AND  THE 
POWER    OVER    COLONIES    GENERALLY. 

(Continued.) 

GEEMANY. 

The  constitution  of  Germany  in  force  in  1884  when,  by  reason  of 
the  acquisition  of  large  districts  of  territory  in  Africa  it  became 
necessary  to  establish  a  system  of  colonial  administration,  contained 
the  following  provisions  concerning  administration  of  territory  and 
populations  outside  the  domestic  territory  of  Germany  (Art.  IV,  sees. 
1,7). 

The  following  matters  are  subject  to  the  supervision  of  the  Empire  (Reich) 
and  to  its  legislative  power : 

Regulation  *  *  *  of  colonization  and  emigration  to  lands  external  to 
Germany  (ausserdeutschen  Lander)     *    *    *. 

The  establishment  of  a  general  system  of  protection  (eines  gemeinsamen 
Schutzes)  of  German  trade  in  foreign  countries,  of  German  navigation,  and  of 
the  German  flag  on  the  high  seas;  and  of  a  common  consular  representation 
(vertretung) ,  which  shall  be  established  by  the  Empire  (Reich). 

The  presidency  of  the  union  (das  prasidium  des  Bundes)  is  vested  in  the 
King  of  Prussia.  Whoever  is  King  of  Prussia  bears  the  title  of  German  Em- 
peror. The  Emperor  is  to  represent  the  Empire  (Reich)  in  all  its  relations 
under  the  law  of  nations  (Volkerrechtlich)  ;  and  in  the  name  of  the  Empire  to 
declare  war  and  conclude  peace,  to  enter  into  alliances  and  other  treaties  with 
foreign  States  and  to  accredit  and  receive  ministers. 

These  provisions  are  not  regarded  by  leading  German  publicists  as 
the  source  of  the  power  of  the  State  to  'acquire  and  govern  colonies 
and  dependencies;  this  power  being  regarded  as  an  incident  of  the 
sovereignty  of  the  State. 

{Die  Rechtsverhdltnisse  der  Deutschen  Schutzgebiete^  by  Karl 
von  Stengel  (1901),  pp.  32,  33.) 

{Einfuhrung  in  die  Kolonialpolitih^  by  Otto  Kobner,  1908,  pp. 
71  to  85.) 

In  1886  the  German  Parliament,  after  two  years'  consideration, 
enacted  a  statute  which  was  entitled  "the  law  concerning  the  jural 
relations  of  the  protected  territories"  {dcis  Gesetz  hetreffend  die 
Rechtsverhdltnisse  der  Deutschen  Schutzgehiete) .  This  statute  by 
its  terms  referred  to  the  statute  enacted  by  the  German  Parliament 

55 


66        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF   NATIONS. 

in  1879  entitled  "the  law  concerning  the  German  consular  juris- 
diction "  {das  Gesetz  Ijetreffend  die  Deutschen  Konsulargericht- 
hdrheit).  The  circumstances  which  led  to  the  building  of  German 
colonial  policy  upon  the  principles  of  consular  jurisdiction  were 
as  follows: 

For  a  long  time  prior  to  1879,  the  custom  prevailed  among  civilized 
States  of  obtaining  by  treaty,  under  application  or  threat  of  force,, 
from  States  of  non-European  origin  and  civilization  which  ^yere 
recognized  as  States  outside  of  the  community  of  nations,  but  in 
political  and  social  relationship  with  that  community,  a  right  of 
protection  {schutzrecM)  for  their  subjects  and  for  Europeans  gen- 
erally, and  also  for  certain  of  the  native  inhabitants  employed  as  fac- 
tors, brokers,  domestic  servants,  or  farm  laborers,  called  proteges 
{scJmtzgenossen)  ;  this  "protection"  being  exercised  by  the  consuls 
of  the  European  powers. 

By  the  law  concerning  consular  jurisdiction  it  was  provided  that 
"all  citizens  of  the  German  Empire  residing  or  being  within  the 
consular  judicial  districts  and  their  protected  associates  {scfrntzgenos- 
sen)  are  subject  to  the  jurisdiction  of  the  consular  courts." 

The  custom  of  protection  of  native  inhabitants  by  consuls  had  been 
instituted  by  Venice  and  Genoa  in  this  sixteenth  century,  and  had 
proved  a  successful  means  of  carrying  on  a  colonization  the  princi- 
pal object  of  which  was  the  development  of  commerce.  Speaking  of 
this  custom  Frances  Rey,  in  his  book  La  Protection  Diplomatique 
et  Consulaire  (1899,  p.  87),  says: 

The  [native]  proteges  were  for  Venice  and  Genoa  a  considerable  element  of 
political  influence  and  at  the  same  time  a  source  of  wealth ;  for,  belonging  to 
the  same  race  as  the  rest  of  the  population,  they  served  as  natural  interme- 
diaries between  the  natives  and  the  Italian  merchants.  The  privileges  which 
they  enjoyed  enabled  them  rapidly  to  become  rich,  and  for  the  most  astute  of 
them,  the  status  of  protege  was  only  a  temporary  one,  leading  to  being  elevated 
to  the  local  nobility  or  obtaining  the  much-prized  title  of  citizen  of  one  of  the 
two  great  maritime  powers. 

This  protection  was  altogether  a  personal  relationship,  and  was  in 
effect  only  so  long  as  the  person  was  in  the  actual  service  of  a  citizen 
of  the  protecting  State.  (/&.,  edict  of  the  Sultan  of  Turkey  of  1863, 
p.  522.) 

In  1884  the  custom  had  for  a  considerable  time  prevailed  among 
civilized  States  of  making  treaties  of  "protection"  with  chiefs  of 
aboriginal  tribes,  whereby  the  chief,  in  behalf  of  his  tribe,  placed 
himself  and  his  tribe  under  the  "  protection  "  of  the  State  which  had 
acquired  or  was  about  to  acquire  sovereignty  of  the  region  by  occu- 
pation, the  protection  in  form  being  that  of  the  sovereign  ruler  of 
the  State  in  its  name.  Such  tribes  and  their  territory  were  called 
"  colonial  protectorates,"  "  native  protectorates,"  or  "  protected  native 


THE   QUESTION   OF  ABORIGINES  IN   THE  LAW   OF   NATIONS.       57 

States."  These  treaties  recognized  in  form  the  "  sovereignty"  of  the 
chief  of  this  tribe  or  the  ruler  of  the  native  State;  but  as  they  gen- 
erally provided  for  a  "  resident "  or  a  "  resident  commissioner  "  within 
the  native  State,  who  exercised  a  real  control  under  the  form  of 
advice,  these  ''protectorates"  were  legally  nothing  more  than  col- 
onies in  which  the  native  organization  was  temporarily  utilized  as  a 
means  of  administration  until  the  growth  of  the  body  of  colonists 
and  the  development  of  ways  of  communication  made  possible  the 
direct  administration  of  the  aborigines  by  the  colonizing  State. 

{Essai  sv/r  les  Protectorats^  by  Franz  Despagnet,  pp.  240-254.) 

At  this  time,  also,  the  custom  prevailed  of  granting  to  corporations 
of  colonizing  States  letters  patent  of  protection  {schutzhriefe)^  or 
royal  charters  of  privileges,  whereby  these  companies  were  granted 
political  and  administrative  powers  over  specified  regions  where 
they  had  acquired  a  claim  of  title  by  treaty  with  the  chiefs  of 
aboriginal  tribes  or  the  sovereign  of  a  half -civilized  State,  the  privi- 
leges so  granted  being  exercised  under  the  protection  of  the  colonizing 
State. 

In  1879  the  consular  jurisdiction  had  become  a  matter  of  so  much 
importance  to  Germany's  foreign  trade  that  the  matter,  which  had 
previously  been  regulated  by  statutes  regarded  as  inadequate,  was 
taken  up  and  a  carefully  elaborated  statute  on  the  subject  was  en- 
acted, as  above  mentioned. 

In  1880,  12  States,  including  the  United  States,  assembled  in  con- 
ference at  Madrid  and  agreed  upon  a  convention  with  Morocco, 
defining  the  rights  which  they  should  have  in  Morocco,  through  their 
respective  consular  jurisdictions,  concerning  the  protection  of  those  of 
the  native  inhabitants  of  Morocco  who  were  employed  by  citizens  of 
these  States  as  factors,  brokers,  domestic  servants,  or  farm  laborers. 

The  necessity  of  Germany's  taking  action  to  establish  a  colonial 
policy  by  statutory  measures  arose  in  1884  from  the  fact  that  Ger- 
man merchants  had  entered  into  treaties  with  aboriginal  tribes  on 
the  east  and  west  coasts  of  Africa,  by  which  the  chiefs  of  these  tribes 
purported  to  grant  tracts  of  land  to  them  with  powers  of  local  ad- 
ministration;  and  also  from  the  fact  that  other  States,  whose  citi- 
zens claimed  by  discovery  in  Africa  or  under  similar  treaties  with 
chiefs  of  aboriginal  tribes  on  the  coast  and  in  the  interior,  made  claim 
of  sovereignty  over  the  regions  in  which  the  German  merchants  had 
thus  established  themselves.  The  International  Congo  Association 
was  seeking  recognition  as  an  African  State  having  sovereignty 
over  the  immense  Congo  Basin,  and  on  April  22, 1884,  received  recog- 
nition from  the  United  States.  On  the  next  day  France,  claiming  a 
part  of  this  basin  by  discovery  and  by  treaties  with  aboriginal  chiefs, 
made  an  arrangement  with  the  association  by  which  the  claims  of 
France  were  conceded  and  by  which  it  also  obtained  the  right  of  pre- 


58        THE  QUESTION   OF  ABORIGINES  IN   THE  LAW   OF   NATIONS. 

emption  of  the  claims  of  the  association  if  the  latter  should  ever 
sell.     This  arrangement  was  notified  to  the  powers  in  May,  1884. 

On  June  26,  1884,  during  the  debate  in  the  Reichstag  on  the  treaty 
of  trade  and  navigation  with  Korea,  the  German  Government,  speak- 
ing by  the  chancellor  of  the  Empire,  made  the  following  declaration 
of  the  principles  of  the  colonial  policy  of  Germany  which  it  pro- 
posed should  be  adopted.  The  material  parts  of  Prince  Bismarck's 
statement  were  as  follows: 

We  are  for  the  first  time,  through  the  undertakings  of  the  merchants  of  our 
North  Sea  ports,  coupled  with  purchases  of  land  and  followed  by  applications 
for  the  protection  of  the  Empire  (Reichschutz)  compelled  to  subject  to  a  closer 
examination  the  question  whether  we  are  able  to  promise  this  protection  of 
the  Empire  to  the  desired  extent.  I  repeat  that  I  am  opposed  to  colonies — I 
will  say  rather  to  the  colonial  system,  as  most  of  the  States  have  carried  it  on 
during  the  last  century,  the  French  system,  as  one  may  say  at  the  present  time — 
against  colonies  which  have  as  their  basis  a  piece  of  land,  then  the  seeking  to 
draw  emigrants  thither,  to  establish  there  officials  and  erect  fortified  places ; 
that  to-day  I  have  not  yet  given  up  my  former  views  in  opposition  to  this  kind 
of  colonization,  which  may  be  useful  for  other  lands  but  is  not  practicable 
for  us.  I  believe  that  colonial  projects  can  not  be  built  up  artificially,  and 
that  all  the  examples  brought  forward  in  the  committee  as  discouragements 
to  action  simply  showed  that  a  false  path  had  been  entered  upon;  that,  so  to 
say,  it  had  been  attempted  to  build  a  harbor  where  there  was  no  commerce,  to 
build  a  city  where  there  were  no  inhabitants  and  to  which  it  was  sought  to 
attract  them. 

Entirely  different  is  the  question,  first,  whether  it  is  judicious,  and,  second, 
whether  it  is  the  duty  of  the  German  Empire,  as  respects  those  of  its  citizens 
who  have  entered  upon  such  undertakings  in  reliance  upon  the  protection 
(schutz)  of  the  Empire,  to  extend  to  them  this  protection  and  a  certain  amount 
of  assistance  in  their  colonial  undertakings,  so  that  those  structures  which 
have  grown  out  of  the  superabundant  energy  of  the  whole  German  body,  in 
foreign  lands,  may  be  granted  our  trusteeship  {pflege)  and  protection  (schutz). 
And  to  this  I  say  yea,  with  little  confidence,  however,  from  the  standpoint  of 
prudence — I  can  not  foresee  what  may  come  from  this — but  with  absolute 
confidence  from  the  standpoint  of  the  duty  of  the  State  (der  stdatlichen 
Pflicht)     *     *     *. 

It  has  been  said  that  our  colonial  undertakings  will  be  very  costly  and  will 
bring  our  distressed  treasury  into  an  even  worse  condition  than  it  is  at  present. 
This  is,  of  course,  correct  if  we,  as  has  formerly  been  the  case  in  such  experi- 
ments, should  start  out  by  sending  a  multitude  of  higher  and  lower  officials 
to  the  regions  in  question  and  then  establish  a  garrison  there  and  build  bar- 
racks, harbors,  and  forts.  This  is  not  even  remotely  our  policy ;  least  of  all,  not 
mine.  My  policy,  which  is  approved  by  His  Majesty  the  Emperor,  is  to  commit 
to  the  activity  and  the  adventurous  spirit  of  our  seafaring  and  trading  fellow 
citizens  the  responsibility  for  the  material  development  of  the  colonies 
(Kolonien)  as  well  as  for  bringing  them  into  existence,  and  not  so  much  in 
the  form  of  annexation  of  overseas  Provinces  forced  upon  the  German  Empire 
as  in  the  form  of  protection  by  letters  of  privilege  (freibriefen),  after  the 
manner  of  the  English  royal  charters,  thus  committing  to  those  interested  in 
the  colony  the  authority  to  govern  themselves  in  all  essential  respects,  there 
being  assured  to  them  the  faculty  of  a  European  jurisdiction  for  Europeans 


THE   QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS.       59 

and  protection  of  them  to  the  extent  that  we  are  able  to  give  it  without  stand- 
ing garrisons.  It  seems  to  me,  further,  that  in  a  colony  of  this  kind  there 
should  be,  as  the  representative  of  the  authority  of  the  Empire  (vertreter  der 
Autoritat  des  Reiches),  an  official  having  the  title  of  resident  or  consul. 

After  stating  that  it  was  the  policy  of  Germany  not  to  encroach 
upon  the  regions  to  which  other  European  States  had  tenable  claims 
and  announcing  that  the  German  Government  had  received  word  that 
Great  Britain,  the  other  claimant  to  the  territory  in  question,  had 
withdrawn  its  claim  in  favor  of  Germany,  he  continued : 

Our  policy  is,  therefore,  not  to  establish  Provinces  but  mercantile  undertak- 
ings of  such  a  character  that  when  completely  developed  they  shall  constitute 
a  sovereignty  which  shall  remain  in  feudal  relationship  (lehnhar)  exclusively 
to  the  German  Empire  as  a  permanent  mercantile  sovereignty  under  the  pro- 
tection (protektion)  of  the  Empire  and  to  protect  (schutzen)  these  undertak- 
ings in  their  free  development,  not  only  against  attacks  of  their  immediate 
neighbors  but  also  against  oppression  or  injury  of  the  other  European  powers. 

We  hope  that  the  tree,  through  the  efforts  of  the  gardeners  who  plant  it, 
will  in  all  respects  thrive.  If  it  does  not  and  the  plant  is  a  failure,  it  subjects 
the  Empire  to  little  injury,  for  the  amounts  which  we  are  required  to  expend 
are  of  slight  consequence.     *     *     * 

This  is  the  difference :  Under  the  system  which  I  have  called  the  French,  the 
administration  supplied  by  the  State  continuously  has  to  decide  whether  the 
undertaking  is  a  proper  one  and  bids  fair  to  be  a  successful  one;  under  this 
system  we  commit  to  the  trading  body,  the  private  individual,  the  free  choice 
as  to  the  manner  of  carrying  on  the  undertaking,  and  if  we  see  that  the  tree 
does  take  root,  grow,  and  thrive,  and  if  it  asks  the  protection  (schutz)  of  the 
Empire,  we  stand  by  it,  and  I  can  not  see  how  we  can  rightfully  deny  it  such 
protection. 

(Proceedings  of  the  German  Reichstag  for  1884,  vol.  2,  pp.  1061,  1062.) 

From  this  time  forward,  although  the  w^ord  colony  (kolonie) 
continued  to  be  used  in  the  German  political  and  legal  language 
(as  Prince  Bismarck  himself  had  used  it  in  his  statement  of  German 
policy),  the  technical  word  applied  to  all  the  German  establishments 
in  Africa  and  the  Pacific  Ocean  was  sehiitzgeMete — protected  terri- 
tories. 

The  title  of  the  act  of  1886  was  "An  act  respecting  the  jural  rela- 
tions (Eechtsverhdltnisse)  of  the  German  protected  territories 
{Schutzgehiete) ."    The  first  article  was  as  follows: 

The  power  of  protection  (schutzgeumlt)  is  exercised  by  the  Kaiser  in  the 
name  of  the  Empire   (in  nnmen  Reichs). 

This  statute,  as  has  been  said,  was  formed  by  applying  the  statute 
of  1879  relating  to  consular  jurisdiction  -with  certain  modifications. 
In  1888  an  amending  statute  was  passed,  and  in  1900  both  the  statute 
relating  to  consular  jurisdiction  and  that  relating  to  protected  terri- 
tories were  revised,  the  new  statute  concerning  protected  territories 
receiving  the  short  title  of  schiitzgehietegesetB — "  the  protected  terri- 
tories law." 


60        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF    NATIONS. 

(Reichsgesetzblatt.  1879,  p.  197;  1886,  p.  75;  1888,  p.  71;  1900,  p. 
213  and  p.  809.) 

Though  the  statute  concerning  the  protected  territories  Avas,  by  the 
action  of  the  German  Parliament  in  1900,  still  further  divorced  from 
the  statute  concerning  consular  jurisdiction,  it  was  still  left  so  that 
it  referred  to  the  latter  statute  in  many  respects.  A  brief  but  very 
careful  and  accurate  statement  of  the  legal  and  constitutional  status 
of  the  German  colonies,  as  held  by  leading  German  publicists,  was 
made  by  Otto  Kobner  in  an  introduction  to  the  documents  concern- 
ing German  colonial  administration  contained  in  the  Lois  Organiques 
des  Colonies^  published  by  the  Institut  Colonial  International  in 
1906  (vol.  3,  pp.  333-353).    This  statement  is  as  follows': 

Signification  und  exercise  of  the  ''Schutzgetoalt.'' — The  fundamental  prin- 
ciple of  German  colonial  constitutional  law  is  expressed  as  follows  in  Article  I 
of  the  law  concerning  the  protected  territories :  "  The  Emperor  exercises,  in 
the  name  of  the  Empire,  the  schutzgeivalt  in  the  German  colonies." 

"  Schutzgewalt,"  in  the  sense  of  the  actual  German  colonial  law,  signifies 
nothing  else  than  the  full  sovereignty  of  the  State ;  that  is  to  say,  all  the  rights 
of  sovereignty  which  belong  tx)  the  State  as  sovereign.  For  in  spite  of  the 
name  schutzgehiete  (protected  territories)  the  German  possessions  overseas 
are,  if  one  considers  their  actual  juridical  situation,  not  at  all  protectorates 
but  colonies  in  the  strictest  sense  of  the  word,  in  which  the  sovereignty  of  the 
State,  exactly  as  in  the  mother  country  itself,  has  a  character  strictly  terri- 
torial and  theoretically  unlimited. 

This  "  schutzgeivalt  "  belongs  to  the  German  Empire  as  a  State ;  it  is  dele- 
gated, as  respects  its  exercise,  to  the  Emperor  as  the  organ  of  the  Empire, 
and  the  Emperor  exercises  it  "  in  the  name  of  the  Empire." 

Exercise  of  the  legislative  power  for  the  colonies. — The  schutzgewalt,  repre- 
senting as  it  does  the  aggregate  of  the  sovereign  rights,  comprises  the  legisla- 
tive power  as  one  of  its  most  important  elements.  By  virtue  of  Article  I  of 
the  law  concerning  the  protected  territories  above  mentioned  this  power  is 
theoretically  delegated  to  the  Emperor ;  and  thus  there  is  created  for  the  legis- 
lation in  the  colonies  a  juridical  situation  departing  in  essential  respects  from 
the  principles  of  the  organization  of  the  legislative  power  in  the  mother 
country. 

In  the  mother  country  the  legislative  power  of  the  Empire  is  exercised,  in 
pursuance  of  Article  V  of  the  constitution  of  the  Empire,  by  the  Bundesrat 
(federal  council)  as  the  constitutional  representative  of  the  confederated  gov- 
ernments of  the  States  forming  the  Empire,  and  the  Reichstag  (general  as- 
sembly) as  the  representative  of  the  people.  Agreement  of  both  houses  by 
majority  vote  is  necessary  in  order  to  bring  into  existence  a  law  of  the  Empire. 
To  the  Emperor  belongs,  in  the  mother  country,  by  article  17  of  the  consti- 
tution, the  duty  of  promulgating  and  publishing  the  law  thus  voted,  as  well 
as  the  duty  of  seeing  that  the  laws  are  faithfully  executed. 

In  the  colonies,  on  the  contrary,  the  Emperor,  under  Article  I  of  the  law 
concerning  the  protected  territories,  is  the  legislative  organ ;  the  "  imperial 
ordinance  "  is  substituted  for  •'  the  law  of  the  Empire." 

Relation  between  the  colonial  jurisprudence  established  by  act  of  the  German 
Legislature  and  that  established  by  imperial  ordinance — Extent  of  the  power 
of  the  Emperor  in  making  ordinances  relative  to  the  various  subjects  of  colonial 
law. — This  right  of  the  Emperor  to  make  ordinances  is,  however,  limited  as 


THE   QUESTION    OF   ABORIGINES  IN    THE    LA.W    OF   NATIONS.       61 

regards  tlie  matters  which  concern  the  colonies,  upon  all  the  points  respecting 
which  the  legislature  has  expressly  acted ;  the  general  principle  of  public  law 
being  applied  that  a  regulation  made  by  statute  is  supreme  over  one  established 
by  executive  ordinance. 

The  limitations  upon  the  right  of  the  Emperor  to  malve  ordinances  vary 
according  to  the  subject  matter  of  the  colonial  law. 

In  the  sphere  of  public  law,  strictly  so  called,  *  *  *  there  is,  in  fact,  very 
little  limitation.  The  general  sentiment  seems  to  be  that  in  the  beginning  of 
the  development  of  new  colonies  such  as  Germany  possesses  it  is  better  to  leave 
to  the  central  administration  of  the  home  Government  the  duty  of  taking  the 
necessary  dispositive  measures.  As  respects  these  matters,  involving  as  they 
do  experimental  arrangements,  with  the  possibility  of  having  to  make  rapid 
modifications  in  the  measures  taken  to  adapt  them  to  the  facts  learned  by 
experience,  and  to  meet  the  needs  of  the  development  of  the  colony,  it  is 
impracticable  and  undesirable  each  time  such  a  change  is  required  to  put  in 
motion  the  whole  legislative  machinery  of  the  State,  a  process  which  in  all 
States,  ^nd  particularly  in  Federal  States,  results  in  delay. 

On  the  other  hand,  as  respects  those  subjects  of  the  law  which  have  reference 
to  the  legal  relations  of  the  inhabitants  of  the  colonies  as  individuals,  where  the 
question  is  of  the  protection  of  life,  liberty,  property,  and  other  personal 
interests — that  is  to  say,  as  respects  matters  within  the  domain  of  the  private 
law,  the  penal  law%  civil  and  criminal  procedure,  and  judicial  organization — 
other  considerations  have  prevailed  from  the  outset.  The  general  sentiment 
is  that  as  respects  this  range  of  subjects  a  special  legal  protection  is  desirable. 
The  most  powerful  legal  protection  which  the  modern  State  can  give  to  the 
inhabitants  of  its  colonies  is  that  of  a  statute  of  its  legislature.  For  this 
reason  we  find  the  regulations  in  the  German  colonies,  on  the  subjects  above 
mentioned,  regulated  by  statute  of  the  German  Legislature. 

The  above  general  statements  are,  in  practice,  subjected  to  some  modifications. 

The  juridical  situation  of  the  colonies  as  respects  matters  of  puhlic  law. 
Within  the  domain  of  the  public  law,  the  right  of  the  Emperor  to  make 
ordinances  is  limited  only  by  a  small  number  of  statutory  dispositions.  The 
most  important  of  these  is  that  guaranteeing  liberty  of  conscience  and  religious 
toleration  in  the  colonies  in  favor  of  members  of  religious  communities  recog- 
nized by  the  German  Empire.  In  the  law  concerning  the  protected  territories 
there  are  legislative  provisions  relating  to  naturalization  which  partake  of  the 
nature  of  dispositions  of  public  law,  but  the  other  branches  of  the  adminis- 
trative law  of  the  colonies  are  regulated,  with  almost  no  exceptions,  by 
ordinances. 

The  power  of  making  ordinances  is  in  practice  subject  to  an  important 
restriction,  in  so  far  as  its  exercise  involves  financial  consequences.  The  law 
concerning  the  receipts  and  exjDenses  of  the  protected  territories  of  March  30, 
1892,  applied  to  the  administration  of  the  colonies  the  same  principles  of 
budgetary  law  as  are  applied  in  the  mother  country.  Annual  estimates  are  re- 
quired to  be  made  of  the  receipts  and  expenses  of  the  colonies  and  to  be  brought 
together  in  a  budget  for  the  colonies.  This  budget  is  fixed  by  law  before  the 
commencement  of  the  budgetary  year;  this  budgetary  law  being  enacted  by 
the  Bundesrat  and  the  Reichstag  the  same  as  other  laws. 

From  the  above  it  results  that,  though  the  Emperor  alone  has  power  to  or- 
ganize for  all  and  each  of  the  colonies  all  the  branches  of  the  administration, 
nevertheless,  inasmuch  as  nearly  all  these  dispositions  from  their  nature  re- 
quire appropriations  of  money  in  order  to  carry  them  into  effect,  there  is  con- 
tinually an  indirect  intervention  of  the  legislative  organs  of  the  mother  country 
in  the  exercise  of  the  power. 


62        THE  QUESTION   OF  ABORIGINES  IN  THE   LAW   OF   NATIONS. 

The  juridical  situation  in  the  domain  of  private  law,  penal  law,  procedure^ 
and  the  organization  of  the  cmirts.  Relation  betiveen  the  colonial  law  and  the 
law  of  the  consular  jurisdictions.  The  civil  law,  the  penal  law,  procedure, 
and  the  organization  of  the  courts  in  the  colonies  are  theoretically,  as  has  been 
said  above,  to  be  regulated  by  statute;  a  contrary  rule  applying  from  that 
applied  in  the  case  of  the  public  law  of  the  colonies,  using  the  term  "public 
law"  in  the  strict  sense.  But  the  special  statutory  regulations  covering  these 
parts  of  the  law  in  the  German  colonies  have  not  had  the  form  of  special  legis- 
lation for  the  colonies,  nor  have  they  come  about  by  a  process  of  borrowing 
parts  of  the  statutes  applicable  to  Germany  proper.  These  special  statutory 
regulations  have  come  into  being  by  legislative  acts  declaring  applicable  in  the 
colonies  those  arrangements,  made  by  legislative  action,  which  are  in  force 
within  the  territory  of  foreign  States  in  which  consular  jurisdictions  exist 
according  to  customary  law,  and  in  which  a  consular  jurisdiction  has  been 
gi-anted  to  Germany  by  treaty.  By  the  law  concerning  the  protected  territoriej* 
in  its  original  form  it  was  enacted  that  the  provisions  of  the  law  concerning 
consular  jurisdiction  should  apply  in  the  colonies  as  respects  the  whole  domain 
of  the  private  law.  In  recent  years,  however,  there  has  been  a  more  and  more 
distinct  recognition  of  the  fact  that  there  are  important  differences  between 
the  legislative  requirements  of  a  consular  jurisdiction  and  those  of  a  colony. 
Consequently  the  revised  law  of  1900  concerning  the  protected  territories  no 
longer  reproduces  in  their  totality  the  provisions  of  the  law  concerning  con- 
sular jurisdiction  as  covering  the  parts  of  the  law  above  mentioned,  but  only 
declares  applicable  certain  specified  paragraphs  of  that  law. 

The  German  law  concerning  consular  jurisdiction  refers  back  to  the  legis- 
lation of  Germany  itself,  but  nevertheless  subjects  the  laws  so  borrowed  to 
some  modifications.  Thus  it  provides  that,  except  so  far  as  otherwise  pre- 
scribed in  the  consular  jurisdiction  act  itself,  the  German  imperial  statutes 
and  the  statutes  of  Prussia  dealing  with  the  subjects  formerly  covered  by  the 
Prussian  civil  code,  shall  be  applicable,  within  the  German  colonies,  in  the 
domain  of  the  civil  law,  civil  procedure,  insolvency,  and  commercial  arbitra- 
tion. There  is  one  important  exception,  alike  as  respects  the  consular  jurisdic- 
tions and  the  colonies,  namely,  as  respects  commercial  matters;  with  regard 
to  which  the  above-mentioned  statutes  of  Germany  are  applied  only  in  so  far 
as  the  customary  local  commercial  law  does  not  otherwise  provide. 

In  the  sphere  of  the  penal  law  and  criminal  procedure  the  provisions  of  the 
German  law  are  alone  applicable. 

These  provisions  of  the  German  law  are,  however,  not  applicable  in  so  far 
as  they  suppose  the  existence  of  institutions  which  do  not  exist,  or  situations 
which  do  not  arise,  in  the  exercise  of  the  consular  jurisdiction,  or  in  the 
administration  of  a  particular  colony.  Matters  of  civil  law  and  civil  procedure 
which  are  for  this  reason  not  regulated  by  the  German  law,  are  determined 
from  time  to  time  by  ordinance  of  the  Emperor. 

The  law  concerning  consular  jurisdiction,  however,  itself  contains  a  number 
of  provisions,  different  from  those  in  force  in  Germany,  in  the  matter  of  both 
civil  and  criminal  law  and  procedure.  It  also  establishes  a  form  of  judiciary 
quite  different  from  that  which  exists  in  Germany.  These  provisions,  as  has 
been  said,  are  for  the  most  part  applicable  in  the  colonies. 

It  is  evident  that  this  reference  of  the  law  concerning  colonies  back  to  the 
law  concerning  consular  jurisdiction,  and  the  reference  back  of  the  latter  law 
to  the  general  statutes  of  Germany,  make  it  doubtful  just  what  legislative  pro- 
visions are  in  force  in  the  colonies.  But,  apart  from  this  formal  inconvenience, 
there  is  a  further  difficulty  arising  from  the  fact  that  it  is  becoming  more  and 
more  settled,  by  actual  experience,  that  the  economic  and  juridical  needs  of  the 


THE   QUESTION   OF  ABORIGINES  IN   THE  LAW   OP   NATIONS.       63 

colonies  are  essentially  different  and  more  numerous  tlian  are  those  of  the 
persons  who  are  the  subjects  of  the  consular  jurisdiction.  In  the  first  stage 
of  development  of  the  German  colonies,  when  the  situation  demanded  that 
there  should  be  provided,  as  quickly  as  possible,  a  complete  body  of  colonial 
laws  covering  civil  and  criminal  matters,  it  was  proper,  as  a  practical  expedi- 
ent, to  take  as  a  basis  the  consular  law  then  in  existence  and  proved  to  be 
suitable  by  experience.  But,  since  that  time,  the  economic  and  juridical  de- 
velopment of  the  German  colonies  has  made  considerable  progress,  and  the 
need  of  a  new  system  of  law  is  more  and  more  making  itself  felt.  It  is  for 
this  reason  that  the  representatives  of  the  science  of  German  colonial  law,  as 
well  as  those  who  are  engaged  in  actual  colonial  administration,  are  exerting 
themselves  to  bring  about  a  change,  so  that  the  German  colonial  law  shall  be 
emancipated  from  the  consular  law,  and  so  that  in  the  sphere  of  both  the 
civil  and  the  criminal  law  there  shall  be  created  by  statute  a  German  colonial 
law  not  dependent  on  any  other  part  of  the  German  law,  but  complete  in  itself 
and  adapted  to  the  particular  needs  arising  in  the  process  of  colonial  develop- 
ment.       *     *     * 

The  legislation  for  the  aborigines  and  other  colored  inhabitants.  The  body 
of  laws  above  mentioned,  covering  civil  and  criminal  law,  procedure  and 
organization  of  courts,  is  applicable  only  to  the  white  population  of  the  Ger- 
man colonies.  Section  4  of  the  law  concerning  the  protected  territories  pro- 
vides that  the  aborigines  are  not,  as  a  general  rule,  subject  to  all  these  pro- 
visions, but  that  they  shall  be  subject  to  them  only  in  so  far  as  they  shall  have 
been  made  applicable  to  them  by  ordinance  of  the  Emperor. 

Section  4  of  the  law  concerning  the  protected  territories  also  provides  that 
besides  the  "  colored "  population  other  parts  of  the  population  determined 
by  ordinance  of  the  Emperor  may  be  put  upon  the  same  footing  as  the  ab- 
origines. By  virtue  of  the  authority  so  delegated  to  him,  the  Emperor  has 
decreed  that  the  members  of  all  the  foreign  colored  tribes  (die  Angehorigen 
fremder  farbiger  Stdmme)  shall  be  placed  upon  the  same  footing  as  the  ab- 
origines, subject  to  exceptions  made  by  the  governor  of  the  colony  with  the 
approval  of  the  chancellor  of  the  Empire. 

As  respects  the  juridical  situation  of  the  aborigines  and  of  all  other  colored 
people  assimilated  to  them,  the  right  of  the  Emperor  to  make  ordinances  by 
the  delegation  of  the  statute  above  mentioned  is  theoretically  unlimited. 

It  should  be  remarked,  however,  that  the  juridical  meaning  of  the  expres- 
sion "  colored  people  "  is  not  exactly  the  same  as  its  anthropological  meaning. 
By  section  9  of  the  law  concerning  the  protected  territories  it  is  permitted  to 
the  chancellor  of  the  Empire  to  grant  to  certain  aborigines  the  citizenship 
of  the  Empire  (Reichsangehorigkeit)  ;  and  in  this  case  they  have  under  all 
circumstances  the  juridical  situation  of  German  citizens.  But  there  are  also 
certain  other  elements  of  the  population,  "  colored  "  in  the  physical  sense  of 
the  word,  who  are  placed,  from  the  juridical  point  of  view,  on  the  same  foot- 
ing as  the  white  citizens  of  civilized  States.  In  conformity  with  the  develop- 
ment of  modern  international  law,  it  is  provided  expressly  by  ordinance  of 
the  Emperor  that,  as  respects  the  German  colonial  law,  Japanese  are  not  to 
be  considered  as  "  members  of  colored  tribes."  Moreover,  in  German  East 
Africa,  by  ordinance  of  the  governor,  Syrians,  inhabitants  of  Goa,  and  Gin 
ghalese  Christians  are,  as  respects  their  juridical  status,  regarded  as  not  amen- 
able to  the  system  of  laws  provided  for  the  aborigines,  but  to  that  provided 
for  Europeans.  The  colored  citizens  of  any  State  which  is  civilized  and  recog- 
nized as  such  by  international  law,  are,  under  the  German  colonial  law,  with- 
out any  formal  prescription,  placed  upon  the  same  footing  as  the  whites;  for 


64        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF    NATIONS. 

example,  a  negro  who  is  a  citizen  of  the  United  States  of  America  is  treated 
as  such  in  a  German  colony,  and  not  as  a  "  colored  "  person. 

The  right  of  making  ordinances  delegated  to  the  chancellor  of  the  Empire. 
The  ordinances  of  the  chancellor  of  the  Empire  are  another  important  source 
of  German  colonial  legislation.  His  right  to  make  such  ordinances  has  two 
different  juridical  sources : 

(n)  Delegation  by  the  Emperor.  The  exercise  of  the  right  of  making  ordi- 
nances delegated  to  the  Emperor,  as  above  stated,  is  by  him  delegated  in  many 
f'ases  to  the  chancellor  of  the  Empire.  This  practice  has  been  adopted  on  a 
great  scale  and  for  all  the  colonies,  and  particularly  as  respects  the  regul/ition 
of  the  .iuridical  situation  of  the  aboriginal  population.  In  certain  important 
matters  of  law,  also,  the  Emperor  has  made  a  similar  delegation  of  power. 
Sometimes  the  delegation  has  been  of  a  whole  subject  in  the  law ;  sometimes 
the  Emperor  has  himself  enacted  the  fundamental  dispositions  and  left  to  the 
chancellor  only  the  function  of  decreeing  the  measures  necessary  to  execute 
these  dispositions.  The  latter  method  has  been  applied  in  the  legislation  re- 
garding real  property  in  the  colonies. 

<'b)  Delegation  by  statute.  The  chancellor  of  the  Empire  has,  by  direct  dele- 
gation by  means  of  statute,  nn  extensive  right  of  making  ordinances  beyond 
that  which  is  delegated  to  him  by  the  Emperor.  The  law  concerning  the  pro- 
tected territories  (sec.  15)  provides  that  "it  is  the  function  of  the  chancellor 
of  the  Empire  to  make  ordinances  in  execution  of  the  statutes,"  and  that  "  the 
chancellor  of  the  Empire  has  jurisdiction  to  proclaim  for  the  colonies  or  for 
snecified  parts  of  them  police  or  civil  regulations  concerning  the  administra- 
tion and  to  decree,  as  penalties  for  nonobservance  of  them,  imprisonment  not 
exceeding  three  months,  reformative  detention  (haft),  fine,  or  confiscation  of 
specified  articles."  This  power  the  chancellor  of  the  Empire  has  used  exten- 
sively. A  considerable  part  of  the  German  colonial  law  now  in  force,  especially 
in  the  case  of  the  administrative  law,  rests  upon  ordinances  of  this  kind. 

Under  the  authority  of  the  chancellor  of  the  Empire  the  affairs  concerning 
the  colonies  are  managed  by  two  departments — the  colonial  division  of  the  de- 
partment of  foreign  affairs  [since  1907  the  department  of  the  colonies,  under  a 
secretary  for  the  colonies]  and  the  department  of  the  navy  for  the  territory  of 
Kiau-Tschau. 

The  right  of  making  ordinances  delegated  to  colonial  governors.  Finally  a 
part  of  the  colonial  legislation,  important  both  in  extent  and  in  nature,  is 
constituted  by  ordinances  of  the  governors  of  the  different  colonies.  These 
ordinances  are  principally  concerned  with  prescribing  regulations  having  to  do 
with  the  juridical  situation  of  the  aborigines;  but,  nevertheless,  by  means  of 
this  kind  of  ordinances,  some  important  general  dispositions  have  been  made, 
principally  within  the  domain  of  the  administrative  law,  which  apply  to  the 
white  population  as  well. 

The  law  concerning  the  protected  territories  does  not  itself  delegate  to  the 
colonial  governors  the  power  to  make  ordinances;  but  it  recognizes  that  the 
povrer  may  be  delegated  to  them  by  those  having  the  superior  functions.  It  is 
necessary  here  to  make  the  following  distinction : 

(a)  In  part  the  power  of  colonial  governors  arises  from  delegation  by  the 
Emperor.  In  a  number  of  cases  the  Emperor  has  delegated  his  power  of  mak- 
ing ordinances  regarding  some  matters  of  law  by  giving  the  chancellor  of  the 
Empire  full  powers  and  at  the  same  time  providing  that  the  governor,  by 
consent  of  the  chancellor,  shall  have  power  to  make  ordinances  necessary  to 
regulate  the  matter. 

(b)  In  part  this  power  arises  from  delegation  by  the  chancellor  of  the  Em- 
pire.    In  section  15  of  the  law  concerning  the  protected  territories,  which  con- 


THE   QUESTION"   OF  ABORIGINES  IN   THE  LAW   OP   NATIONS.       65 

tains  the  grant  of  tlie'  ordinance-making  power  to  the  chancellor  of  the  Empire, 
it  is  expressly  provided  that  the  exercise  of  the  power  may  be  delegated  by  him 
to  a  colonial  chartered  company  provided  with  a  letter  of  protection  (schutz- 
hrief)  granted  by  the  Emperor,  or  to  administrative  officials  in  the  col- 
onies. *  *  *  By  virtue  of  this  section,  the  exercise  of  the  ordinance-making 
power,  to  the  extent  that  it  belongs  to  the  chancellor  of  the  Empire,  has  been 
delegated  to  governors  of  different  colonies,  notably  to  those  of  the  Caroline 
Islands,  Palaos  and  the  Marianne  Islands,  to  the  vice  governor  at  Ponape,  and 
to  the  district  administrators  of  Jap  and  Saipan. 

The  governors  of  the  colonies  of  German  East  Africa,  German  Southwest 
Africa,  Kamerun,  and  New  Guinea  are  authorized  to  delegate  their  powers  per- 
manently to  other  officials  of  the  colony  as  respects  certain  districts  geographi- 
cally delimited,  with  or  without  restrictions.     *     *     * 

The  colonial  council.  *  *  *  The  Kolonialrath  [colonial  council]  was 
established  by  a  decree  of  the  Emperor  of  October  10,  1890,  in  connection  with 
the  colonial  division  of  the  foreign  office,  as  a  "  council  of  experts  in  colonial 
matters."  The  details  concerning  this  council  wxre  established  by  decrees  of 
the  chancellor  of  the  Empire  of  October  10,  1890,  and  April  14,  1895. 

According  to  these  provisions  the  members  [the  number  of  whom  is  not 
fixed]  are  chosen,  by  the  chancellor,  for  a  term  of  three  years.  The  most  im- 
portant of  the  colonial  companies  are  invited  to  nominate,  from  their  members, 
for  membership  in  the  council.  Likewise  the  central  organizations  of  religious 
missions  are  represented  by  delegates  in  the  council.  The  remaining  members 
are  chosen  by  the  chancellor  at  his  discretion  from  among  those  skilled  in 
colonial  science  or  experienced  in  colonial  administration. 

The  colonial  council  is  authorized  (1)  to  give  its  opinion  upon  all  matters 
which  are  submitted  to  it  by  the  colonial  division  of  the  foreign  office  [now 
the  colonial  department],  and  (2)  to  make  decisions  in  regard  to  propositions 
submitted  to  it  by  any  of  its  members.  *  *  *  The  council  chooses  from  its 
membership  a  permanent  committee,  whose  opinion,  on  certain  subjects,  may 
be  required  by  [the  colonial  department],  to  be  given  verbally  or  in  writing, 
without  being  referred  to  a  session  of  the  full  committee.  This  committee  is 
composed  of  [seven]  members. 

It  follows  from  the  foregoing  that  the  colonial  council  is  not  a  parliament 
having  power  to  decree  decisions  as  respects  colonial  affairs,  but  a  consulta- 
tive organ  of  the  central  colonial  administration.  It  is,  however,  evident  that 
the  consultative  assistance  of  specialists  is  of  the  greatest  importance  as 
respects  questions  of  legislation.  *  *  *  The  colonial  council  has  authority 
only  as  respects  the  colonies  of  Africa  and  in  the  Pacific;  not  concerning  the 
territory  of  Kiau-Tschau,  which  is  under  the  department  of  the  navy. 

The  councils  of  government  in  the  different  colonies.  The  creation  of  con- 
sultative organs  of  government  in  the  different  colonies,  whose  membership  is 
drawn  from  the  local  population,  and  particularly  representing  its  economic 
groups,  is  very  useful,  especially  as  regards  the  framing  of  the  ordinances  re- 
quiring investigation  and  deliberation,  which  are  made  by  the  colonial  governors. 

After  such  councils  had  come  into  existence  in  several  colonies  under  dif- 
ferent forms,  a  general  regulation  on  the  subject  was  made  by  the  chancellor 
of  the  Empire  by  ordinance  of  December  24,  1903.  This  ordinance  determined 
the  constitution  of  "  councils  of  government "  and  was  applicable  to  German 
East  Africa,  German  Southwest  Africa,  Kamerun,  Togo,  German  New  Guinea, 
and  Samoa.  In  each  of  these  colonies  there  was  constituted  a  council  of  gov- 
ernment composed  in  part  of  the  governor  and  a  certain  number  of  colonial 
officials  (official  members)  and  in  part  of  a  certain  number  of  the  white  inhab- 
89581—19 5 


66        THE   QUESTION   OF   ABORIGINES  IN   THE   LAW   OF   NATIONS. 

itants  of  the  colony  (non-official  members)  or  their  representatives.  The 
number  of  official  members  can  not  exceed  that  of  the  non-official  members. 
The  official  members  are  named  by  the  governor ;  the  non-official  members  are 
also  designated  by  him,  for  a  year  at  least,  after  he  has  first  heard  the  pro- 
fessional groups  which  consider  themselves  interested.  The  governor  is  obliged 
to  submit  to  the  deliberation  of  the  council  of  government  before  transmission 
to  [the  colonial  department]  (a)  propositions  for  the  annual  budget;  (b> 
projects  of  ordinances  to  be  made  by  the  governor  or  to  be  proposed  by  him^ 
unless  they  concern  matters  not  purely  local.  If  the  governor  thinks  it  his- 
duty,  on  account  of  danger  of  delay  or  for  any  other  reason,  to  abstain,  as  a 
matter  of  exception,  from  submitting  to  the  council  of  government  a  project 
of  one  of  these  kinds,  he  may  bring  it  directly  to  the  attention  of  the  central 
administration.  It  is  permissible  also  for  the  governor  to  submit  to  the  delib- 
eration of  the  council  matters  other  than  those  which  have  been  mentioned. 
If  the  governor  is  of  opinion  that  a  vote  should  be  taken  on  a  certain  subject^ 
or  a  nonofficial  member  desires  a  vote,  it  must  be  taken  and  the  result  must 
be  recorded  in  the  proceedings ;  but  the  governor  is  not  bound  by  the  result  of 
the  deliberation,  even  in  case  of  a  vote. 

In  the  colony  of  Kiau  Tschau,  *  *  *  by  an  ordinance  of  the  governor 
dated  March  13,  1899,  three  representatives  of  the  civil  community  who  are 
annually  commissioned  to  this  effect  are  joined  to  the  council  of  government 
composed  of  all  the  chiefs  of  the  different  administrations  for  the  deliberation 
of  important  colonial  affairs. 

The  further  extension  of  autonomy  in  colonial  administration.  It  must  be 
admitted  as  certain  that  the  economic  future  of  the  colonies  depends  upon  the 
suitable  development  of  colonial  organs  of  autonomous  administration.  More- 
over, such  an  extension  of  autonomous  administration  has  already  been  an- 
nounced by  the  chancellor  of  the  Empire  as  an  important  element  of  the 
colonial  program.  *  *  *  There  exists,  however,  no  simple  formula  uni- 
versally applicable  by  which  this  can  be  accomplished.  *  *  *  in  colonies 
of  temperate  climate,  where  a  fixed  body  of  white  colonists  can  establish  itself 
permanently  and  constantly  augment  in  wealth  and  numbers,  the  circumstances 
are  much  more  favorable  for  colonial  autonomy  than  in  tropical  possessions^ 
which  naturally  white  men  will  frequent  only  in  limited  numbers  and  where 
they  will  stay  only  as  long  as  it  may  be  necessary. 

Paul  Leroy-Beaulieu  in  his  book,  De  la  Colonisation  cheB  les 
Peuples  Modernes  (5th  ed.,  1902,  vol.  1,  pp.  310-313),  has  defended 
the  French  system  against  the  criticism  of  Prince  Bismarck  and 
has  in  his  turn  criticized  the  German  system.    He  says : 

The  distinction  which  Prince  Bismarck  attempted  to  make  between  the 
French  colonization,  which  was,  according  to  him,  essentially  and  traditionally 
military  and  based  on  principles  of  conquest,  and  the  German  colonization,  which 
was  to  remain  perpetually  pacific  and  based  upon  the  principles  of  commerce, 
has  not  the  importance  which  the  great  chancellor  of  the  Empire,  whether  sin- 
cerely or  not,  attributed  to  it.  It  has  not  been  by  the  free  will  of  France  or  in 
pursuance  of  a  prearranged  plan  that  the  French  colonization  has  had  recourse- 
to  arms.  The  first  establishments  of  the  French  *  *  *  were  simple  trading 
stations.  *  *  *  But  when  citizens  of  a  great  civilized  State  are  dis- 
persed in  the  midst  of  savage  or  barbarous  populations  which  have  no  fixed 
governments  and  no  exact  idea  of  the  power  of  the  European  peoples,  it  is  in- 
evitable that  sooner  or  later  incidents  will  occur  which  make  it  necessary  for 
the  colonizing  State  to  intervene  in  the  internal  affairs  of  the  aborginal  popu- 


THE   QUESTION   OF  ABOKIGINES  IN   THE  LAW   OF   NATIONS.       67 

lation  in  order  to  impose  upon  them  a  reign  of  law  and  an  orderly  administra- 
tion. There  may  be  denials  of  justice  to  the  aborigines  by  the  European  mer- 
chants or  residents;  they  may  commit  thefts;  they  may  massacre  traders  or 
colonists ;  they  may  insult  the  flag  of  the  State— such  are  some  the  inevitable 
incidents  which  will  happen  more  and  more  fre(iuently  if  there  is  any  hesitation 
about  punishing  them.  Moreover,  it  is  necessary  when  all  is  said,  in  spite  of 
all  the  pacific  resolutions  which  may  be  made  at  the  outset,  to  establish  solidly 
the  political  and  administrative  preponderance  of  the  colonizing  State  upon  the 
whole  population  of  a  territory  within  which  a  few  European  colonists  have 
begun  to  secure  a  foothold.  But  besides  this  there  are  abuses  which,  inasmuch 
as  they  affect  only  the  aboriginal  population,  leave  the  resident  European  popu- 
lation insensible  and  cold.  Slavery,  for  example,  the  devastating  wars  between 
tribes  or  chieftaincies,  the  custom  of  human  sacrifice — these  disorders,  in  some 
sense  a  permanent  feature  of  barbarism,  necessarily  draw  down  upon  aboriginal 
peoples  an  intervention,  continually  more  and  more  active  and  complete,  of  the 
European  Government  which  is  a  witness  of  them  and  which,  if  it  does  not  exert 
itself  to  repress  them,  makes  itself  an  accomplice.  To  extirpate  these  crimes 
and  horrors  the  State  can  not  fall  back  on  the  slow  action  of  religious  propa- 
ganda, and  much  less  on  the  very  problematical  and  even  slower  action  of  in- 
struction and  education.  *  *  *  it  is,  therefore,  to  be  expected — doubtless 
not  within  the  next  few  years  but  at  some  later  time — that  the  Germans  will 
do  more  or  less  as  the  French  have  done,  and  following  out  to  its  logical  conse- 
quences the  colonizing  policy  will  end  by  administering  more  or  less  directly  and 
completely  the  barbarous  peoples  in  the  midst  of  whom  they  have  established 
their  flag. 

The  war  with  the  Hereros  and  the  Hottentots,  which  began  in  1901 
and  continued  until  1907,  led  to  a  general  criticism  of  German  colo- 
nial policy  in  Germany,  and  attempts  Avere  made  by  the  Social-Demo- 
cratic and  Catholic  ]Darties  in  the  Reichstag  to  have  the  Schutzge- 
h'letegesetz  amended;  the  efforts  of  both  being  to  introduce  into  the 
system  a  parliamentary  regulation  of  the  colonial  administration,  so 
as  to  decentralize  it  and  to  require  it  to  exercise  a  guardianship  over 
the  aborigines.  The  Social-Democrats  worked  in  the  direction  of 
having  a  special  administration  for  the  aborigines  subordinate  to  the 
local  administration  made  a  permanent  feature  of  the  system;  the 
Catholic  group  in  the  direction  of  extending  missionary  influence. 
The  action  of  the  Social-Democratic  group  is  set  forth  in  a  book  by 
Gustave  Noske,  entitled  "-Kolonialpolitik  und  Socialdemohratie^'* 
published  in  1914.  That  of  the  Catholic  group  is  narrated  in  the 
pamphlet  on  Kolonien  und  Kolonialpolitik^  forming  one  of  the  series 
in  the  Staatshurger-BibliotheJc  (Citizen's  Library),  published  by 
the  Volksverein  fur  das  Katholisches  Deutschland  (People's  Asso- 
ciation of  Catholic  Germany).  In  this  latter  publication  it  is  said 
(p.  29) : 

The  inducement  of  the  aborigines  to  labor  can  not  be  accomplished  withoilt  the 
cooperation  of  the  missionaries.  It  is  not  enough  to  content  ourselves  with 
Commissioners  for  the  Aloriginee  (Eingehorenkommissarer) . 

Anyone  sent  as  commissioner  should  be  regarded  much  more  as  a  missionary 
than  as  a  trustee  (pfleger)  or  guardian  (rormiind)  of  the  negro.    Unless  there 


68        THE   QUESTION   OF  ABORIGINES  IX   THE   LAW   OF   NATIONS. 

be  a  just  and  benevolent  handling  of  the  aborigines,  any  colonial  policy  must 
come  to  naught. 

The  German  Government,  in  1904,  issued  a  memorandum  concern- 
ing the  policy  respecting  the  aborigines  and  the  Herero  revolution 
{Denkschrift  uher  Eingehorenpolitik  und  Hereroauf stand)  ^  setting 
forth  the  difficulties  which  it  had  had  in  the  administration  of  South- 
west Africa.  (Appendix  to  the  Deutsches  Kolonialblatt  for  Sept.  1, 
1904.) 

The  result  of  the  discussion  was  that,  in  1907,  the  administration  of 
all  the  colonies,  except  Kiau-Tschau,  was  transferred  to  the  colonial 
division  of  the  foreign  office  and  placed  in  charge  of  a  minister  of  the 
colonies,  to  whose  department  was  attached  the  colonial  council.  The 
attempts  to  remodel  the  Schutzgebietegesetz^  however,  failed. 

In  the  book  by  Alfred  Zimmermann  entitled  "A  History  of  Ger- 
man Colonial  Policy"  {Geschichte  der  Deutschen  Kolonialpolitik) ^ 
published  in  1914,  a  careful  and  detailed  statement  is  made  of  all  the 
facts  leading  up  to  the  enactment  of  the  original  statute  of  1886,  and 
of  the  subsequent  events  affecting  the  colonial  policy  of  Germany. 

CONCLUSIONS. 

From  the  foregoing  survey  it  is  evident  that  all  civilized  States 
which  administer  overseas  colonies  and  dependencies  recognize  that 
the  relationship  which  each  of  them  bears  to  these  communities  is  of 
an  essentially  personal  character,  though  it  extends  to  property  as 
well  as  person — the  State  as  a  personality  exercising  power  over  these 
communities  as  personalities  under  its  jurisdiction;  that  the  power 
is  exercised  by  special  legislation  as  may  be  "  needful " ;  that  the 
power  is  "  adequate  "  to  the  needs  of  these  personalities ;  and  that  it 
is  limited  by  their  needs  and  by  the  fundamental  principles  recog- 
nized by  all  civilized  States  and  embodied  in  their  constitutions. 

That  it  is  a  relationship  which  has  its  source  in  the  sovereignty  of 
the  State,  and  not  in  the  domestic  constitution  of  the  State,  is  also 
recognized  by  the  leading  publicists,  though  it  is  also  recognized  that 
the  domestic  constitution  may  properly  specify  how  the  legislature, 
executive,  and  judiciary  of  the  State  may  act  in  the  exercise  of  the 
power  and  may  impose  proper  restrictions  on  their  action. 

It  is  also  recognized  generally  that  the  legislature  is  properly  the 
supreme  superintending  organ  of  the  State  in  exercising  the  power, 
though  the  executive  is  also  almost  invariably  recognized  as  the  proper 
ordinary  organ  for  this  purpose,  either  by  specification  contained  in 
the  constitution,  or  by  implication  from  the  grant  of  the  executive 
power,  or  by  delegation  by  the  legislative  of  sublegislative  power  to 
the  executive. 


THE    QUESTION    OF   ABORIGINES   IN    THE    LAW    OF    NATIONS.       69^ 

As  a  term  to  describe  this  relationship,  the  word  "  trusteeship  " 
seems  to  be  coming  into  use  in  the  Anglo-Saxon  world.  {Cf.  The 
Administration  of  Dependencies,  by  Alpheus  H.  Snow,  pp.  534—536, 
■  582-591.) 

When  "  trusteeship  "  is  used  in  this  sense,  it  has  not  the  meaning 
of  trusteeship  in  the  private  law,  but  is  used  in  a  broad  sense  con- 
forming to  the  literal  meaning  of  the  word.  In  the  private  law  a 
trusteeship  is  the  relation  between  persons  arising  out  of  the  deposit 
of  money  or  property  by  one  w^ith  the  other,  with  the  object  of  having 
it  pi'oduce  an  income  to  be  paid  over  by  the  trustee  in  a  specified 
manner  to  specified  persons,  or  having  it  used  in  a  specified  manner 
for  the  benefit  of  specified  persons  or  for  specified  objects.  It  is  thus, 
in  the  sense  of  the  private  law,  essentially  a  relationship  concerning 
property  rather  than  a  relationship  between  persons.  A  trust,  in  its 
literal  sense,  is  a  relationship  of  an  essentially  personal  character. 
In  its  modern  derivative  sense,  especially  as  used  in  the  poliH co-legal 
language  of  the  present  day,  the  word  "  trust "  covers  all  the  relations 
of  a  fiduciary  character  in  which  a  person  assumes  a  relationship  of 
responsibility  for  or  to  another,  as  both  the  Oxford  and  Century 
dictionaries  testify.  In  this  broad  sense,  trusteeship  is  a  generic  term 
including  all  the  fiduciary  relationships  relating  to  person  or  prop- 
erty, and  thus  includes  the  relationship  of  parent  and  child,  husband 
and  wife,  guardian  and  ward,  patron  and  apprentice,  master  and 
servant,  as  well  as  trustee  and  cestui  que  trust,  agent  and  principal^ 
bailee  and  bailor,  depositary  and  depositor,  partner  and  copartner^ 
etc. 

Using  trusteeship  as  its  literal  sense  and  also  to  some  extent  in  this 
generic  sense,  it  seem  to  be  the  most  appropriate  word  to  decribe  the 
relationship  between  a  civilized  State  and  all  its  colonies  and  de- 
pendent communities  of  whatever  character. 

The  trusteeship  -of  a  civilized  State  for  its  colonies  and  de- 
pendencies is,  however,  a  trusteeship  essentially  relating  to  perso^i 
rather  than  property,  and,  therefore,  the  closest  analogies  which  the 
private  law  furnishes  for  determining  the  problems  of  this  trustee- 
ship are  those  derived  from  the  rules  of  the  private  law  relating  to 
patron  and  apprentice,  and  guardian  and  ward.  The  analogy  of  the 
relationship  of  parent  and  child,  though  often  applied,  seems  to  be 
figurative  and  inexact,  though  there  are  implications  in  the  adjective^ 
"  paternal "  that  are  not  without  value  by  way  of  analogy. 

It  would  seem,  therefore,  that  the  general  nature  of  the  jural  rela- 
tionship which  a  civilized  State  exercises  over  all  its  colonies  and 
all  its  dependent  communities,  whether  these  communities  be  in 
colonies,  or  within  its  domestic  territory  or  located  externally  to 


70        THE   QUESTION    OF   ABORIGINES   IN    THE    LAW   OF   NATIONS. 

both,  is  best  described  by  the  word  trusteeship,  using  this  word  in  its 
literal  sense  as  implying  a  fiduciary  relationship  essentially  personal, 
though  extending  to  property  as  well  as  person;  that  the  fiduciary 
power  is  plenary,  in  the  sense  that  it  is  adequate  to  the  needs  of  the 
situation  of  the  particular  personality  to  which  it  is  applied,  though 
limited  to  these  needs;  that  as  a  power  over  political  personalities 
it  is  an  incident  of  the  sovereignty  of  each  civilized  State,  and  is 
governed  by  the  law  of  nations,  though  not  by  the  body  of  rules 
which  apply  between  civilized  States  to  which  the  name  interna- 
tional law  is  properly  applied;  and  that  the  closest  analogies  to 
this  relationship  which  occur  in  the  private  law  are  those  of  patron 
and  apprentice  and  guardian  and  ward. 

As  respects  self-governing  colonies  principally  inhabited  by  per- 
sons of  European  origin,  the  closest  analogy  to  be  draAvn  from  the 
private  law  would  se«m  to  be  that  of  the  relationship  of  patron 
and  apprentice;  as  respects  all  other  colonies  and  dependencies  the 
closest  analogy  to  be  drawn  from  the  private  law  would  seem  to 
be  that  of  guardian  and  ward;  the  analogy  becoming  very  close  in 
the  case  of  aboriginal  tribes  whose  members,  by  reason  of  their  lack 
of  mental  and  moral  development,  occupy  a  relationship  to  civilized 
States  akin  to  that  which  young  children  of  civilized  parents  bear  to 
the  State. 

The  word  "  protectorship "  implies  a  fiduciary  relationship  of  a 
personal  character,  but  is  in  its  literal  sense  limited  to  defence  against 
injury,  and  does  not  imply  personal  influence  and  control.  In  its 
literal  sense,  therefore,  it  is  not  applicable  to  describe  the  jural 
relationship  of  a  civilized  State  to  all  its  colonies  and  dependencies, 
since  that  relationship  implies  not  only  defence  but  active  and  con- 
tinuous education  and  guidance.  It  is  to  be  noted,  ho w^ ever,  that  the 
French  and  English  word  "  protection,"  and  the  German  word 
schutz^  were  legal  terms  in  the  feudal  law,  from  which  law^  they 
apparently  came  into  the  public  law  of  Europe.  In  the  feudal  law 
protection  or  sctiutz  implied  a  personal  relationship  between  a  sover- 
eign or  a  lord  having  the  dominium  or  domain  over  territory  and 
the  imperium  or  empire  over  its  inhabitants,  whereby  a  complicated 
body  of  reciprocal  rights  and  duties  arose;  the  sovereign  or  lord 
being  regarded  as  the  protector  of  the  rights  of  person  and  property 
of  his  subjects  or  vassals,  and  they  rendering  service,  or  compensa- 
tion in  lieu  of  service,  in  return.  In  this  sense  protection  or  schutz 
had  very  nearly  the  meaning  of  trusteeship,  using  that  word  in  its 
broadest  sense.  That  in  the  founding  of  the  German  colonial  system 
this  feudal  sense  of  schutz  was  in  the  minds  of  those  originally  con- 
cerned seems  probable  from  the  fact  that  Prince  Bismarck,  in  his 
original  declaration  of  colonial  policy,  asserted  that  "  the  mercantile 


THE   QUESTION   OF   ABORIGINES  IN    THE   LAW   OF   NATIONS.       71 

sovereignty  "  with  which  it  was  proposed  to  endow  the  colonies  was 
to  be  ''  in  feudal  relationship  "  {lehnhar)  to  the  German  Empire. 

(As  to  the  meaning  of  fvotection^  schwtz  and  trust  in  the  feudal 
law,  see  Staats-und-Gesellschafts  Lexikon^  by  Herman  Wagener, 
vol.  12,  pp.  121-148;  article  on  '^  Lehnreiihty  Especially  see  p.  122, 
concerning  the  cmtrustiones^  of  the  time  of  Charlemagne,  who  were 
persons  in  the  close  personal  confidence  of  the  King  and  members  of 
his  privy  council.) 

The  most  recent  writer  who  has  considered  the  relations  of  Ger- 
many to  its  protected  territories  (H.  Gellmann,  in  his  article  on 
Die  V olkerrechtliche  Okkupation,  written  just  before  the  war  and 
published  in  the  Zeitschrift  fur  das  Privat-und-Offentliche  Becht, 
of  Vienna,  in  1915  (Nos.  3  and  4,  vol.  41),  after  an  extensive  exami- 
nation of  the  jural  principles  of  the  relationship  between  civilized 
States  and  aboriginal  tribes,  concludes  (pp.  707-708)  that  Germany, 
as  protector  {Schutzherr)  of  the  protected  territories  {Schutzge- 
hiete) ,  stands  in  the  relationship  to  them  of  "  international  guardian- 
ship" {v olkerrechtliche  Y ormundschaft)  ^  and  that  a  civilized  State, 
in  the  exercise  of  this  international  guardianship,  is  "the  organ 
of  the  power  of  the  community  of  the  law  of  nations  by  an  irrev- 
ocable mandate."  {Das  Reich  ist  Organ  der  V olkerrechtsgemeinschaft 
Kraft  der  en  unentziehharen  Mandats).  He  holds  that  a  civilized 
State,  in  exercising  power  over  its  colonies  and  dependencies,  is 
*'  neither  a  constitutional  nor  an  international  sovereign,"  but  that  its 
sovereignty  is  of  a  special  character. 

In  a  book  entitled  Die  Deutschen  /Schutzgehiete,  Erwerh,  Ver- 
waltung  und  Gerichtsharkeit  (The  German  Protected  Territories', 
Their  Institution,  Administration,  and  Jurisdiction),  by  Hellmuth 
Kuhn,  published  in  1913,  a  survey  is  made  of  the  whole  literature  on 
the  subject  of  the  jural  relationship  between  Germany  and  its  pro- 
tected territories.  He  concludes  that  the  Schutzgehiete  are  "  colo- 
nies" in  the  generic  sense,  though  the  existing  Schutzgehiete  of 
Germany  are  rather  to  be  classified  as  "dependencies"  (p.  73). 
Kuhn  regards  these  dependencies  as  subject  to  the  plenary  sover- 
eignty of  Germany.  He  cites  (p.  63)  two  writers,  Joel  and  Pann,  as 
holding  that  the  German  protected  territories  have  a  relationship 
to  Germany  which  is  both  under  the  law  of  nations  and  the  consti- 
tutional law  of  Germany.  He  refers  also  to  the  view  of  Radlauer 
(p.  65),  that  "motherland  and  colonies  have  a  separate  political  ex- 
istence, as  States,  based  on  differing  conceptions,"  and  to  his  argu- 
ment, supporting  this  view,  that  they  must  be  regarded  as  States 
because  they  are  "  lands  subject  to  external  regulation  and  not  ter- 
ritories forming  part  of  a  legislative  unity,"  and  because  the  inhab- 
itants of  these  lands  require  for  their  proper  government  "  the  appli- 


72        THE  QUESTION   OF  ABORIGINES  IN   THE  LAW  OF   NATIONS. 

cation  of  special  political  principles  as  respects  all  their  political 
activities."  Kuhn  quotes  with,  approval  the  following  words  of 
Eadlauer:  ■ 

The  power  over  colonies  is  a  constitutional  paternal  power  over  a  daughter- 
land.  *  *  *  Just  as  a  father,  under  the  ancient  German  law,  exercised  the 
paternal  power  of  guardianship  (Muntwalt)  over  the  affairs  of  his  child^ 
not  in  the  name  of  the  child,  but  for  the  child's  use  and  benefit,  though  upon 
his  (the  parent's)  responsibility,  so  the  Empire  in  its  protected  territories 
exercises  the  sovereignty  in  its  own  name  and  upon  its  own  responsibility. 

The  conclusion  which  would  seem  to  follow  from  this  whole  sur- 
vey is  that  the  power  which  a  civilized  State  exercises  over  all  its 
colonies  and  dependencies  is,  according  to  the  law  of  nations,  a  power 
of  trusteeship,  and  that  the  power  of  guardianship  over  its  dependent 
aboriginal  tribes  is  one  of  the  manifestations  of  this  general  power. 


CHAPTER  VI. 

RIGHTS  OF  ABORIGINES  AS  RESPECTS  THE  LAND  INHABITED  BY  THEM. 

The  question  of  the  relation  of  the  Indian  tribes  to  the  soil  first 
came  before  the  United  States  Supreme  Court  in  1810,  in  the  case 
of  Fletcher  v.  Peck,  6  Cranch,  121.  John  Quincy  Adams  and  Joseph 
Story  appeared  for  the  defendant  in  error,  in  opposition  to  the  claim 
under  an  Indian  grant.    In  their  argument  they  said : 

What  is  the  Indian  title?  It  is  a  mere  occupancy  for  the  purpose  of  hunting. 
It  is  not  lilve  our  tenures ;  they  have  no  idea  of  a  title  to  the  soil  itself.  It  is 
overrun  by  them,  rather  than  inhabited.  It  is  not  a  true  and  legal  possession. 
Vattel,  b.  1,  §81  and  §209 ;  b.  2,  §97.  Montesquieu  b.  18,  2.  12.  Smith's  Wealth 
of  Nations,  b.  5,  c.  1.     It  is  a  right  not  to  be  transferred  but  extinguished. 

The  majority  of  the  court,  speaking  by  Chief  Justice  Marshall, 
found  it  sufficient  for  the  decision  of  the  case  to  make  the  cautious 
statement  that  "  the  nature  of  the  Indian  title,  which  is  certainly  to 
be  respected  by  all  courts  until  it  is  legitimately  extinguished,  is  not 
such  as  to  be  absolutely  repugnant  to  a  seizin  in  fee  on  the  part  of 
the  State."  The  minority,  speaking  by  Johnson,  J.,  held  that  the 
Indian  tribes  within  the  States  had  the  fee  subject  to  a  right  of  pre- 
emption by  the  States  in  which  the  land  was  located,  and  that  this 
right  of  preemption  could  be  conveyed  by  the  State  to  the  United 
States. 

In  the  case  of  Johnson  v.  Mcintosh,  8  Wheaton,  543,  to  which 
reference  has  already  been  made,  an  Indian  title  purporting  to 
have  been  granted  by  the  Indian  tribes  inhabiting  the  country  to  a 
body  of  private  individuals  when  the  United  States  w^ere  British 
colonies  was  held  invalid. 

The  Supreme  Court,  speaking  by  Chief  Justice  Marshall,  ren- 
dered a  unanimous  decision,  covering  in  their  opinion  the  historical 
aspects  of  every  phase  of  the  Indian  land  question  from  the  stand- 
point of  English  and  American  law  and  the  law  of  nations.  The 
following  extracts  will  illustrate  the  point  decided  by  the  court : 

The  inquiry  *  *  *  is,  in  great  measure,  confined  to  the  power  of  Indians 
to  give,  and  of  private  individuals  to  receive,  a  title  which  can  be  sustained 
in  the  courts  of  this  country.     *     *     * 

On  the  discovery  of  this  immense  continent  the  great  nations  of  Europe  were 
eager  to  appropriate  to  themselves  so  much  of  it  as  they  could  respectively 
acquire.  •  Its  vast  extent  offered  an  ample  field  to  the  ambition  and  enterprise 
of  all,  and  the  character  and  religion  of  its  inhabitants  afforded  an  apology 

73 


74        THE   QUESTIOIT   OF   ABORIGINES   IN    THE   LAW   OF   NATIONS. 

for  considering  them  as  a  people  over  whom  the  superior  genius  of  Europe 
might  claim  an  ascendency.  The  potentates  of  the  Old  World  found  no  difR- 
culty  in  convincing  themselves  that  they  made  ample  compensation  to  the 
inhabitants  of  the  new  by  bestowing  on  them  civilization  and  Christianity  in 
exchange  for  unlimited  independence.  But  as  they  were  all  in  pursuit  of  nearly 
the  same  object,  it  was  necessary,  in  order  to  avoid  conflicting  settlements 
and  consequent  war  with  each  other,  to  establish  a  principle  which  all  should 
acknowledge  as  the  law  by  which  the  right  of  acquisition,  which  they  all 
asserted,  should  be  regulated  as  between  themselves.  The  principle  was  that 
the  discovery  gave  title  to  the  Government  by  whose  subjects  or  by  whose 
authority  it  was  made,  against  all  other  European  Governments,  which  title 
might  be  consummated  by  possession. 

The  exclusion  of  all  other  Europeans  necessarily  gave  to  the»  nation  making 
the  discovery  the  sole  right  of  acquiring  the  soil  from  the  natives  and  estab- 
lishing settlements  upon  it.  It  was  a  right  with  which  no  Europeans  could 
interfere.  It  was  a  right  which  all  asserted  for  themselves,  and  to  the  asser- 
tion of  which  by  others  all  assented. 

The  relations  which  were  to  exist  between  the  discoverer  and  the  natives 
ivere  to  be  regulated  by  themselves.  The  rights  thus  acquired  being  exclusive, 
no  other  power  could  interfere  between  them. 

In  the  establishment  of  these  relations  the  rights  of  the  original  inhabitants 
were  in  no  instance  entirely  disregarded,  but  were  necessarily,  to  a  consider- 
able extent,  impaired.  They  were  admitted  to  be  rightful  occupants  of  the 
soil,  with  a  legal  as  well  as  a  just  claim  to  retain  iwssession  of  it  and  to  use 
it  according  to  their  own  discretion;  but  their  rights  to  complete  sovereignty, 
as  independent  nations,  were  necessarily  diminished,  and  their  power  to  dis- 
pose of  the  soil  at  their  own  will,  to  whomsoever  they  pleased,  was  denied  by 
the  original  fundamental  principle  that  discovery  gave  exclusive  title  to  those 
who  made  it. 

While  the  different  nations  of  Europe  respected  the  rights  of  the  natives, 
as  occupants,  they  asserted  the  ultimate  dominion  to  be  in  themselves;  and 
claimed  and  exercised,  as  a  consequence  of  this  ultimate  dominion,  a  power 
to  grant  the  soil,  while  yet  in  possession  of  the  natives.  These  grants  have 
been  understood  by  all  to  convey  a  title  to  the  grantees,  subject  only  to  the 
Indian  right  of  occupancy. 

After  a  long  and  careful  examination  of  the  practice  of  the  na- 
tions of  continental  Europe  and  of  Great  Britain,  and  particularly 
of  the  practice  of  Great  Britain  in  dealing  with  the  lands  occupied 
by  the  Indians  in  the  American  colonies,  the  opinion  summarizes 
these  practices  as  follows : 

Thus  all  the  nations  of  Europe  who  have  acquired  territory  on  this  continent 
ave  asserted  in  themselves,  and  have  recognized  in  others,  the  exclusive  right 
of  the  discoverer  to  appropriate  the  lands  occupied  by  the  Indians. 

The  practice  of  the  United  States  is  then  examined  at  length  and 
the  court  thus  sums  up  the  results  of  its  examination : 

The  United  States,  then,  have  unequivocally  acceded  to  that  great  and  broad 
rule  by  which  its  civilized  inhabitants  now  hold  this  country.  They  hold  and 
assert  in  themselves  the  title  by  which  it  was  acquired.  They  maintain,  as 
all  others  have  maintained,  that  discovery  gave  an  exclusive  right  to  extinguish 
the  Indian  title  of  occupancy  either  by  purchase  or  by  conquest;  and   gave 


I 


THE   QUESTION    OF   ABORIGINES  IN    THE   LAW   OF    NATIONS.       75 

:also  a  right  to  such  a  degree  of  sovereignty  as  the  circumstances  of  the  people 
would  allow  them  to  exercise. 

In  the  year  1888  the  question  of  the  Indian  title  to  lands  in 
Canada,  as  established  by  the  peace  treaty  of  1763  between  Great 
Britain  and  France  and  by  the  British  royal  proclamation  of  1763 
dividing  the  western  territory  into  Provinces  and  providing  for  its 
government,  came  before  the  judicial  committee  of  the  British  Privy 
Council  on  appeal  from  the  Supreme  Court  of  Canada  in  the  case 
of  St.  Catharine's  Milling  Company  v.  The  Queen,  L.  R.,  14  App. 
Cas.,  46.  The  lands  in  question  having  been  occupied  by  certain 
Indian  tribes  since  before  1763,  and  these  tribes  having  surren- 
dered by  treaty  their  interest  in  them  to  the  Dominion  of  Canada, 
in  1873,  subsequently  to  the  enactment  of  the  British  North  America 
act  of  1867,  the  question  was  whether  the  treaty  operated  as  the  ex- 
tinguishment of  a  usufructuary  right  in  these  lands  as  Crown  lands 
or  was  the  conveyance  of  an  actual  title  to  the  lands  as  the  property 
'of  these  Indian  tribes;  the  Province  of  Ontario  and  its  grantees,  by 
the  British  North  America  act,  being  entitled  to  them  on  the  one 
view  of  the  law,  and  the  Dominion  of  Canada  and  its  grantees  on 
the  other.  The  judicial  committee,  in  adopting  the  former  view, 
said : 

The  capture  of  Quebec  in  1759  and  the  capitulation  of  Montreal  in  1760  were 
followed  in  1763  by  the  cession  to  Great  Britain  of  Canada  and  all  its  de- 
pendencies, with  the  sovereignty,  property,  and  possession,  and  all  other  rights 
wiiich  had  at  any  previous  time  been  held  or  acquired  by  the  Crown  of  France. 
A  royal  proclamation  was  issued  on  the  7th  of  October,  1763,  shortly  after  the 
tiate  of  the  Treaty  of  Paris,  by  which  the  Majesty  King  George  erected  four 
distinct  and  separate  governments,  styled,  respectively,  Quebec,  East  Florida, 
West  Florida,  and  Grenada,  specific  boundaries  being  assigned  to  each  of  them. 
Upon  the  narrative  that  it  was  just  and  reasonable  that  the  several  nations 
tind  tribes  of  Indians  M^ho  lived  under  British  protection  should  not  be 
molested  or  disturbed  in  the  "  possession  of  such  parts  of  our  dominions  and 
territories  as,  not  having  been  ceded  to  or  purchased  by  us,  are  reserved  to 
tliem  or  any  of  them  as  their  hunting  grounds,"  it  is  declared  that  no  gov- 
<;rnor  or  commander  in  chief  in  any  of  the  new  colonies  of  Quebec,  East 
Plorida,  or  West  Florida  do  presume  on  any  pretense  to  grant  warrants  of 
survey  or  pass  any  patents  for  lands  beyond  the  bounds  of  their  respective 
governments,  or  "  until  our  further  pleasure  be  known  "  upon  any  lands  what- 
•ever,  which,  not  having  been  ceded  or  purchased  as  aforesaid,  are  reserved  to 
said  Indians,  or  any  of  them.  It  was  further  declared  "  to  be  our  royal  will 
for  the  present  as  aforesaid,  to  reserve  under  our  sovereignty,  protection,  and 
dominion  for  the  use  of  the  said  Indians  all  the  land  and  territories  not  in- 
cluded within  the  limits  of  our  said  three  new  governments,  or  within  the 
limits  of  the  territory  granted  to  the  Hudson's  Bay  Company."  The  proclama- 
tion also  enacts  that  no  private  person  shall  make  any  purchase  from  the  In- 
dians of  lands  reserved  to  them  within  those  colonies  where  settlement  was  per- 
mitted, and  that  all  purchases  must  be  on  behalf  of  the  Crown,  in  a  public 
assembly  of  the  Indians,  by  the  governor  or  commander  in  chief  of  the  colony 
in  which  the  lands  lie.     *     *     * 


76        THE   QUESTION    OF   ABORIGINES   IK    THE    LAW   OE    NATIONS. 

Whilst  there  have  been  changes  in  the  administrative  authority,  there  has- 
been  no  change  since  1763  in  the  character  of  the  interest  which  its  Indian 
inhabitants  had  in  the  lands  surrendered  by  the  treaty.  Their  possession,  such 
as  it  was,  can  only  be  ascribed  to  the  general  provisions  made  by  the  royal 
r»roclamation  in  favor  of  all  Indian  tribes  then  living  under  the  sovereignty 
{ind  protection  of  the  British  Crown.  It  was  suggested  in  the  course  of  the^ 
argument  for  the  Dominion  that,  inasmuch  as  the  proclamation  recites  that  the 
territories  thereby  reserved  for  Indians  had  never  "  been  ceded  to  or  pur- 
chased by"  the  Crown,  the  entire  property  of  the  land  remained  with  them. 
That  inference  is,  however,  at  variance  with  the  terms  of  the  instrument, 
which  show  that  the  tenure  of  the  Indians  was  a  personal  and  usufructuary 
right,  dependent  upon  the  good  will  of  the  sovereign.  The  lands  reserved  are 
expressly  stated  to  be  "parts  of  our  dominious  and  and  territories,"  and  it  is 
declared  to  be  the  will  and  pleasure  of  the  sovereign  that  "  for  the  present " 
they  shall  be  reserved  for  the  use  of  the  Indians,  as  their  hunting  grounds, 
under  his  protection  and  dominion.  There  was  a  great  deal  of  learned  dis- 
cussion at  the  bar  with  respect  to  the  precise  quality  on  the  Indian  right,  but 
their  lordships  do  not  consider  it  necessary  to  express  any  opinion  upon  the- 
point.  It  appears  to  them  to  be  sufficient  for  the  purposes  of  the  case  that 
there  has  been  all  along  vested  in  the  Crown  a  substantial  and  paramount 
estate  underlying  the  Indian  title,  which  became  a  plenum  dominiuin  when- 
ever that  title  was  surrendered  or  otherwise  extinguished. 

In  the  report  of  the  Committee  on  Indian  Affairs  of  the  United 
States  House  of  Representatives,  submitted  in  1830,  and  favoring- 
legislation  relating  to  the  removal  of  the  Indians  to  the  Indian  Terri- 
tory, the  legal  aspects  of  the  provision  of  such  reserves  for  aboriginal 
tribes  is  considered.  In  that  report  (21st  Cong.,  1st  sess.,  H.  R.  Rep. 
No.  227,  Feb.  24,  1830) ,  it  was  said : 

The  rigor  of  the  rule  of  their  exclusion  from  these  rights  [the  rights  of  soil! 
and  sovereignty]  has  been  mitigated,  in  practice,  in  conformity  with  the  doc- 
trines of  those  writers  upon  natural  law,  who,  while  they  admit  the  superior 
rights  of  agriculturalists  over  the  claims  of  savage  tribes  in  the  appropriation 
of  wild  lands,  yet,  upon  the  principle  that  the  earth  was  intended  to  be  a 
provision  for  all  mankind,  assign  to  them  such  portion  as,  when  subdued  by  the 
arts  of  the  husbandman,  may  be  sufficient  for  their  subsistence. 

To  the  operation  of  this  rule  of  natural  law  may  be  traced  all  those  small 
reservations  to  the  Indian  tribes  within  the  limits  of  most  of  the  old  States. 
The  General  Court  of  Massachusetts  fell  short  of  coming  up  to  the  principle  of 
natural  law,  but  went  beyond  the  general  maxims  of  the  period,  when,  in  1633, 
it  declared  "  that  the  Indians  had  the  best  right  to  such  lands  as  they  had 
actually  subdued  and  improved."  That  Government,  at  the  same  time,  asserted 
its  right  to  all  the  rest  of  the  lands  within  its  charter,  and  actually  parceled 
them  out  by  grant  among  the  white  inhabitants,  leaving  to  them  the  discre- 
tionary duty  of  conciliating  the  Indians  by  purchasing  their  title!  The  general 
assembly  of  Virginia  asserted  the  unrestricted  right  of  a  conqueror,  and,  at 
the  same  time  conceded  what  the  principles  of  natural  law  were  supposed  ta 
require,  when,  in  1658,  it  enacted  "  that  for  the  future  no  lands  should  be 
patented  until  50  acres  had  been  first  set  apart  to  each  warrior  or  head  of  a 
family  belonging  to  any  tribe  of  Indians  in  the  neighborhood." 

The  recognition  of  this  principle  by  the  Federal  Government  may  be  seen,  at 
this  day,  in  those  small  reservations  which  are  made  to  individual  Indians,  or 


THE   QUESTION   OF  ABORIGINES  IN   THE  LA.W   OF   NATIONS.       77 

to  the  tribe  itself,  upon  the  relinquishment  of  the  body  of  their  lands.  These 
reservations  are  made  in  deference  to  the  principles  of  humanity,  and  because 
it  has  been  found  expedient  to  the  interests  of  the  Government  making  them. 
No  respectable  jurist  has  ever  gravely  contended  that  the  right  of  the  Indians 
to  hold  their  reserved  lands  could  be  supported  in  the  courts  of  the  country 
upon  any  other  ground  than  the  grant  or  permission  of  the  sovereignty  or  State 
in  which  such  lands  lie.  The  Province  of  Massachusetts  Bay,  besides  the  sub- 
dued land  already  mentioned,  during  the  early  period  of  its  history,  granted 
other  lands  to  various  friendly  tribes  of  Indians.  Gookin,  the  great  protector 
and  friend  of  the  Indians,  about  the  time  these  grants  were  made  was  asked, 
why  he  thought  it  necessary  to  procure  a  grant  from  the  general  court  for 
such  lands  as  the  Indians  needed,  seeing  that  "  they  were  the  original  lords  of 
the  soil."  He  replied  that  "  the  English  claim  right  to  the  land  by  patent  from 
their  King."  No  title  to  lands  that  has  ever  been  examined  in  the  courts  of  the 
States,  or  of  the  United  States,  it  is  believed,  has  been  admitted  to  depend  upon 
any  Indian  deed  of  relinquishment,  except  in  those  cases  where,  for  some  meri- 
torious service,  grants  have  been  m.ade  to  individual  Indians  to  hold  in  fee 
simple. 

Some  of  the  colonies  found  it  necessary,  for  the  preservation  of  peace  upon 
their  frontiers,  to  establish  a  general  Indian  boundary,  beyond  which  the  white 
inhabitants  were  forbidden  to  settle,  until  authorized  by  law.  These  lines  were 
generally  in  advance  of  the  settlements.  They  were  also  commonly  established 
in  conformity  with  the  stipulations  made  with  the  Indians  in  conferences  or 
treaties.  That  the  Indian  boundaries  were  regarded  as  temporary,  and  im- 
plied no  abandonment  of  the  principle  upon  which  the  country  was  settled,  is 
€lear  from  many  circumstances  attending  them.  In  some  cases  the  laws  by 
which  these  lines  were  established  did  not  forbid  the  appropriation  of  the  lands 
embraced  in  them  by  patent.  Patents,  in  two  or  three  of  the  colonies  or  States, 
did  actually  issue  under  such  circumstances;  yet,  these  acts,  implying,  as  they 
do,  a  most  important  act  of  ownership  and  sovereignty,  have  been  solemnly 
adjudged  valid  by  the  judicial  tribunals  of  the  country  most  distinguished  for 
their  learning.  But  the  most  decisive  evidence  of  the  light  in  which  these 
reservations  have  always  been  viewed,  in  regard  to  the  question  of  title,  is 
to  be  found  in  the  fact,  that  the  Crown  or  the  proprietors  of  Provinces,  before 
the  Revolution,  and  the  States,  after  that  event,  succeeding  as  they  did  to  the 
sovereignty  over  all  the  lands  within  the  limits  of  their  re'spective  charters,  have 
asserted  the  exclusive  right,  in  themselves,  to  extinguish  the  title  to  lands  re- 
served to  the  Indians,  until  the  Constitution  was  adopted.  Since  that  time 
the  Federal  Government  has  acted  upon  the  same  principle  in  regard  to  the 
lands  belonging  to  the  Government.  If  the  principles  upon  which  this  right  is 
asserted,  and  the  effect  it  has  had  in  practice,  be  examined,  it  will  be  found 
to  be  a  complete  recognition  of  the  original  rule  which  the  nations  of  Europe 
acted  upon  in  the  first  partition  and  settlement  of  the  country.  Some  of  the 
States  have  incorporated  this  right  in  their  constitutions,  as  a  principle  of 
primary  importance.  Laws  have  been  passed  in  all  the  rest,  in  which  there  are 
Indian  reservations,  granted  by  the  gtates,  declaring  the  ^ame  exclusive  right. 

The  committee  do  not  understand  that  either  the  States  or  the  Federal  Gov- 
ernment ever  acted  upon  the  principle  that  it  was  necessary  to  obtain  the 
consent  of  the  Indians  before  the  right  to  exclude  all  competitors  from  the 
market  of  their  lands  could  be  asserted.  It  is  asserted,  upon  the  ground  of 
ownership  and  political  sovereignty,  and  can  be  sustained  upon  no  other  prin- 
ciples than  those  which  our  ancestors  supposed  to  be  well  founded,  when  they 
denied  to  the  Indians  any  right  to  more  land  than  they  required  for  their  sub- 


78        THE   QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

sistence  by  agriculture.  The  Indians  are  paid  for  their  unimproved  lauds  as 
much  as  the  privilege  of  hunting  and  taking  game  upon  them  is  supposed  to 
be  worth,  and  the  Government  sells  them  for  what  they  are  worth  to  the 
cultivator.  The  difference  between  those  values  is  the  profit  made  by  asserting 
the  original  rights  of  discovery  and  conquest.  The  rigor  of  the  original  rule 
has  been  mitigated  in  the  exercise  of  this  right  of  preemption  in  regard  to 
such  lands  as  have  been  improved  by  the  Indians,  for  the  same  reason  that 
their  right  to  such  as  they  had  subdued  was  respected  by  the  colonists  in  the 
early  period  of  their  history.  Improved  lands  or  small  reservations  in  the 
States  are  in  general  purchased  at  their  full  value  to  the  cultivator.  To  pay 
an  Indian  tribe  what  their  ancient  hunting  grounds  are  worth  to  them  after  the 
game  is  fled  or  destroyed  as  a  mode  of  appropriating  wild  lands  claimed  by 
Indians  has  been  found  more  convenient,  and  certainly  it  is  more  agreeable  to 
the  forms  of  justice,  as  well  as  more  merciful,  than  to  assert  the  possession  of 
them  by  the  sword.  Thus  the  practice  of  buying  Indian  titles  is  but  the  substi- 
tute which  humanity  and  expediency  have  imposed  in  place  of  the  sword  in 
arriving  at  the  actual  enjoyment  of  property  claimed  by  the  right  of  discovery 
and  sanctioned  by  the  natural  superiority  allowed  to  the  claims  of  civilized 
communities  over  those  of  savage  tribes.  Up  to  the  present  time  so  invariable 
has  been  the  operation  of  certain  causes,  first,  in  diminishing  the  value  of 
forest  lands  to  the  Indians  and,  secondly,  in  disposing  them  to  sell  readily, 
that  the  plan  of  buying  their  right  of  occupancy  has  never  threatened  to  retard 
in  any  perceptible  degree  the  prosperity  of  any  of  the  States.  The  extensive 
tracts  of  country  at  first  withheld  from  the  agriculturist  by  reservations  in 
several  of  the  old  States  have  been  gradually  reduced  by  various  cessions, 
made  as  they  were  required  by  the  interests  of  the  respective  States,  until  the 
Indians  in  most  of  them  already  find  themselves  restricted  to  those  small 
bounds  which  the  law  of  nature  as  interpreted  by  our  ancestors  prescribed  as 
their  right.  With  what  steadiness  this  policy  has  been  adhered  to  by  the 
States  generally  in  regard  to  Indian  reservations  in  which  they  claimed  the 
absolute  property  may  be  seen  by  tracing  its  operation  in  any  one  of  them,  for 
in  all  the  interest  was  .the  same,  and  the  result  could  not  vary  materially. 
The  governor  of  the  only  one  of  the  old  States,  except  Georgia,  inhabited  by 
any  considerable  number  of  Indians  is  by  law  a  standing  commissioner  to  treat 
with  the  Indians  for  apy  or  all  their  lands. 

In  justice  to  the  character  of  the  early  adventurers  to  this  country,  as  well  as 
to  our  own,  it  ought  to  be  mentioned  th^t,  from  the  period  of  the  origin  of  these 
states,  the  interests  of  the  w^hite  population  and  those  of  the  Indians  were 
understood  by  the  whites  not  to  be  inconsiFtent  with  each  other  in  regard  to  the 
appropriation  of  forest  lands. 

In  the  report  of  Rev.  Jedediah  Morse,  made  to  the  Secretary  of 
War  in  1821,  above  quoted,  the  legality  of  the  removal  of  the  Indians 
to  reservations  is  asserted  and  the  plan  recommended.  In  this  report 
it  was  said: 

The  relations  which  the  Indians  sustain  to  the  Government  of  the  United 
States  is  peculiar  in  its  nature.  Their  independence,  their  rights,  their  title- 
to  the  soil  which  they  occupy  are  all  imperfect  in  their  kind.  Each  tribe 
possesses  many  of  the  attributes  of  independence  and  sovereignty.  They  have 
their  own  forms  of  government,  appoint  their  own  rules,  in  their  own  way, 
make  their  own  laws,  have  their  own  customs  and  religion,  and  without  control 
declare  war  and  make  peace  and  regulate  all  other  of  their  civil,  religious, 
and  social  affairs.    The  disposal  of  their  lands  is  always  done  by  formal  treaties 


THE   QUESTION   OF  ABOEIGINES  IN   THE  LAW   OF   NATIONS.       70' 

between  the  Government  of  the  United  States  and  the  tribe,  or  tribes,  of  whom 
the  lands  are  purchased.  They  have  no  voice,  no  representation  in  our  Gov- 
ernment ;  none  of  the  riglits  of  freemen,  and  participate  with  us  in  none  of  the 
privileges  and  blessings  of  civilized  society.  In  all  these  respects  Indians  are 
strictly  independent  of  the  Government  and  people  of  the  United  States.  Yet 
the  jurisdiction  of  the  whole  country  which  they  inhabit,  according  to  the- 
established  law  of  nations,  appertains  to  the  Government  of  the  United  States ;. 
and  the  right  of  disposing  of  the  soil  attaches  to  the  power  that  holds  the^ 
jurisdiction.  Indians,  therefore,  have  no  other  property  in  the  soil  of  their 
respective  territories  than  that  of  mere  occupancy.  This  is  a  common,  un- 
divided property  in  each  tribe.  When  a  tribe,  by  treaty,  sell  their  territory 
they  sell  only  what  they  possess,  which  is  the  right  to  occupy  their  territory, 
from  which  they  agree  to  remove. 

The  complete  title  to  their  lands  rests  in  the  Government  of  the  United 
States.  The  Indians,  of  course,  can  not  sell  to  one  another  more  than  what 
they  possess ;  that  is,  the  occupancy  of  their  lands.  Nor  can  they  sell  anything 
more  than  occupancy  to  individual  white  people.  Indian  conveyances  give  no 
title  to  the  soil.  This  title  can  come  only  from  the  power  that  holds  the  juris- 
diction. 

Besides,  the  territory  necessary  to  give  support  to  any  given  number  of  people 
in  the  hunter  state,  as  it  is  designated,  is  vastly  greater  than  is  required  to  yield 
subsistence  to  the  same  number  of  people  in  the  agricultural  state.  Here,  again,, 
the  Indian  title  to  their  respective  territories  is  imperfect  in  another  respect. 
When  the  hunter  state,  from  whatever  cause,  is  relinquished  and  the  agricul- 
tural state  adopted,  the  Indians  are  entitled  to  no  more  of  their  territories,^ 
so  changed,  than  is  requisite  to  give  them,  from  cultivating  the  earth,  a  support 
equal  to  that  which  they  derived  from  their  whole  territory  in  the  hunter  state. 
The  advantages  of  the  agricultural  over  the  hunter  state  are  presumed  to  be  a 
just  equivalent  to  the  Indians  for  the  lands  they  are  constrained  to  resign  to 
the  civilized  state.  Such  appear  to  be  the  established  laws  and  doctrines  of 
our  General  and  State  Governments,  in  respect  to  our  relation  to  the  Indian 
tribes  in  our  country,  to  their  independence,  their  rights,  and  title  to  their 
lands. 

In  recent  years  the  appreciation  of  the  value  of  aborigines  as  la- 
borers in  developing  a  new  region  has  led  to  the  practice  of  protect- 
ing and  educating  them  on  reservations  containing  the  native  settle- 
ments, in  the  midst  of  or  near  to  the  settlements  of  the  civilized 
colonists,  so  that  their  labor  may  be  available.  Such  a  system  has 
been  adopted  in  South  Africa  after  a  long  and  careful  study  of  the 
problem  of  the  aborigines  of  the  region,  apparently  with  benefit  to 
all  concerned.  (See  the  Union  of  South  Africa,  with  chapters  on 
Rhodesia  and  the  Native  Territories  of  the  High  Commission,  by  W. 
Basil  Worsfold,  London,  1912,  pp.  35  to  46.) 

(See  also  British  Pari.  Papers,  1905  (Cd.  2399),  vol.  55,  p.  67,  Re- 
port of  the  South  African  Native  Affairs  Commission.) 

(British  Pari.  Papers,  1908  (Cd.  4119),  vol.  70,  p.  273,  Report  on 
Native  Education  in  South  Africa;  ib.  (Cd.  3889),  vol.  72,  p.  5,  Re- 
port of  South  African  Native  Affairs  Commission.) 

(British  Pari.  Papers,  1914  (Cd.  7508),  vol.  59,  Union  of  South 
Africa:  Correspondence  relating  to  the  Natives  Land  Act,  1913.) 


80        THE  QUESTION   OF   ABORIGINES  IN   THE  LAW   OF   NATIONS. 

The  modem  practice  of  nations  in  regard  to  making  reserves  of 
lands  for  the  aboriginal  tribes  is  much  more  favorable  to  the 
aborigines  than  was'  the  practice  of  a  century  ago.  Thus  in  the 
British  protectorate  of  Uganda,  a  general  land  settlement  was 
made  after  the  pacification  of  the  country  and  the  submission 
of  the  King  Mwanga  to  the  sovereignty  of  Great  Britain,  which  is 
described  by  Sir  H.  H.  Johnston,  the  commissioner  having  charge 
of  the  settlement  (British  Pari.  Papers,  1901,  vol.  48  (Cd.  671), 
Africa  No.  7,  1901,  p.  14)  : 

The  general  arrangement  regarding  the  land  settlement  effected  during  the 
past  18  months  is  as  follows :  Where  the  country  is  inhabited  by  settled  natives 
they  are  to  retain — as  individuals  or  tribes — in  their  exclusive  possession  the 
land  they  actually  occupy  or  cultivate.  All  forests  and  all  waste  land  have 
become  the  property  of  His  Majesty's  Government.  In  return  for  the  sur- 
render of  these  rights  to  the  waste  and  uncultivated  lands,  in  almost  all  cases, 
direct  payments  have  been  made  to  the  chiefs  or  peoples.  The  exceptions  to 
this  rule  have  been  few,  and  have  been  occasioned  by  unprovoked  attacks  on 
the  part  of  the  natives. 

In  imposing  terms  of  peace  these  once  hostile  natives  have  been  guaranteed 
the  possession  of  the  lands  they  occupied,  but  have  been  told  that  the  right 
to  the  waste  and  uncultivated  lands  has  been  vested  in  His  Majesty's  Govern- 
ment by  right  of  conquest. 

In  cases  where  the  natives  surrendered  their  rights  voluntarily  and  without 
compensation,  a  promise  has  usually  been  given  that  in  the  event  of  the  tribe 
increasing  and  multiplying  to  a  considerable  extent,  the  local  government  would 
endeavor  to  allot  it  further  tracts  from  out  of  the  waste  and  uncultivated 
lands  to  meet  the  increase  of  native  population.  In  the  Province  of  Uganda 
and  the  district  of  Toro,  where  the  natives  had  attained  a  certain  degree  of 
civilization  and  where  individual  ownership  of  land  is  a  matter  of  great  im- 
portance, an  attempt  has  been  made  to  bring  about  a  very  elaborate  allotment. 
Estates  have  been  marked  off,  both  large  and  small,  by  the  local  chiefs,  in 
concurrence  with  the  European  administration,  and  it  is  hoped  that  the  Uganda 
survey  department  may  put  a  seal  on  tliis  settlement  by  a  survey  which  would 
place  these  boundaries  beyond  dispute. 

I  think  I  may  say  that  nothing  has  tended  to  bring  about  friendlier  relations 
between  the  European  administration  and  the  native  population  than  this 
adjustment  of  the  land  question.  What  the  natives  dreaded  in  the  advent 
of  European  control  was  that  they  would  lose  their  lands  and  become  the 
tenants  of  European  landlords.  In  the  case  of  tribes  like  the  Masai,  who  do 
not  cultivate  the  soil  or  do  not  even  settle  on  it  very  definitely,  grazing  grounds 
to  a  fair  extent  have  been  allotted  on  much  the  same  lines  as  though  the  land 
was  under  cultivation.  There  are,  of  course,  parts  of  the  protectorate,  as  I 
have  already  pointed  out,  absolutely  without  a  settled  population,  which  are 
only  occupied  temporarily  by  hunters  in  pursuit  of  game  or  in  search  of  wild- 
bee  honey. 

Here  the  British  Government  has  at  its  disposal  valuable  tracts  which  it 
can  open  for  direct  European  colonization  without  in  any  way  hurting  the 
feeling  of  an  indigenous  race.  Elsewhere  in  the  protectorate,  however,  so 
long  as  the  natives  live  loyally  under  our  protection  and  pay  the  taxes  which 
they  have  agreed  to  pay,  great  tenderness  should  be  shown  toward  their  feel- 
ings in  regard  to  the  land,  for  it  is  they  who  •  will,  or  should  in  the  main, 


THE   QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS.       81 

support  the  charges  in  the  administration.  Of  course,  there  remain  In  these 
countries  enormous  tracts  of  fertile  soil  which  the  Government  may  deal  with 
freely  and  may  hand  over  to  European  settlers  and  capitalists  without  any 
Inquiry  to  native  rights  or  aspirations  at  all,  but  we  should  be  c&reful  to 
mentally  reserve  at  least  half  of  this  area  of  disposable  ground  for  the  future 
hoped-for  increase  in  the  native  population. 

The  rule  of  the  law  of  nations  according  to  which  aborigines  have 
only  a  personal  right  of  occupying  the  land  inhabited  by  the  tribes  to 
which  they  belong,  subject  to  the  right  of  the  State  exercising  the 
sovereignty  to  restrict  them  to  lands  which  it  sets  apart  and  reserves 
for  them,  suitable  for  them  as  agriculturists,  necessarily  gives  the 
aborigines  an  inferior  station  with  respect  to  the  colonists  and  ex- 
poses them  to  being  cheated  out  of  their  lands  by  malevolent  Euro- 
peans. To  avoid  this  situation  and  this  possibility,  a  practice  has 
recently  been  put  in  operation  in  some  of  the  British  colonies  by 
which  the  British  Government  grants  all  land  on  lease,  reserving  a 
rental,  so  that  all  transfers  of  land  are  subject  to  its  sanction  as  gen- 
eral landlord.  The  aborigines  are  thus  protected  and  the  formation 
of  monopolistic  holdings  is  prevented.  The  land  rental  being  paid 
by  the  colonists  and  the  aborigines  alike,  there  results  a  just  division 
of  the  expenses  of  government  between  the  two  elements  of  the 
population.  This  practice  was  instituted  in  1910  in  Northern  Nigeria 
by  order  of  the  British  Government  as  the  result  of  the  inquiry  and 
investigation  of  a  governmental  commission.  The  provisions  of  the 
land-tenure  act  are  as  follows : 

Whereas  it  is  expedient  that  the  existing  customary  rights  of  the  natives 
of  Northern  Nigeria  to  use  and  enjoy  the  land  of  the  protectorate  and  the 
natural  fruits  thereof  in  sufficient  quantity  to  enable  them  to  provide  for  the 
sustenance  of  themselves  and  their  families  should  be  assured,  protected,  and 
preserved; 

And  whereas  it  is  expedient  that  existing  native  customs  with  regard  to  the 
use  and  occupation  of  land  should,  as  far  as  possible,  be  preserved ; 

And  whereas  it  is  expedient  that  the  rights  and  obligations  of  the  Govern- 
ment in  regard  to  the  whole  of  the  lands  within  the  boundaries  of  the  pro- 
tectorate of  Northern  Nigeria  and  also  the  rights  and  obligations  of  cultivators 
or  other  persons  claiming  to  have  an  interest  in  such  lands  should  be  defined 
by  law: 

1.  This  proclamation  may  be  cited  as  the  land  and  native  rights  proclama- 
tion. 

2.  The  whole  of  the  lands  of  the  protectorate  of  Northern  Nigeria,  whether 
occupied  or  unoccupied  on  the  date  of  the  commencement  of  this  proclamation, 
are  hereby  declared  to  be  native  lands  [certain  lands  being  reserved  by  a 
proviso] . 

3.  All  native  lands,  and  all  rights  over  the  same,  are  hereby  declared  to  be 
under  the  control  and  subject  to  the  disposition  of  the  governor,  and  shall  be 
held  and  administered  for  the  use  and  common  benefit  of  the  natives  of  North- 
ern Nigeria ;  and  no  title  to  the  occupation  and  use  of  any  such  lands  shall  be 
valid  without  the  consent  of  the  governor. 

89581—19 6 


82        THE   QUESTION    OF   ABORIGINES  IN    THE   LAW   OF   NATIONS. 

4.  The  governor,  in  the  exercise  of  the  powers  conferred  upon  him  by  this 
proclamation  with  respect  to  land,  shall  have  regdrd  to  the  native  laws  and 
customs  existing  in  the  district  in  which  such  land  is  situated. 

5.  A  title  to  the  use  and  occupation  of  land  shall  be  termed  a  right  of 
occupancy,  and  the  grantee  thereof  shall  be  termed  the  occupier. 

6.  It  shall  be  lawful  for  the  governor — 

(a)  To  grant  rights  of  occupancy  to  natives  of  Northern  Nigeria  and  to 

persons  other  than  natives  of  Northern  Nigeria ; 
(&)  To  demand  a  rental  for  the  use  of  any  native  lands  granted  to  any 

native  or  non-native ;  and, 

(c)  To  revise  the  said  rental  at  intervals  of  not  more  than  seven  years. 

Such  rights  of  occupancy  may  be  for  a  definite  or  for  an  indefinite  term^ 

and  may  be  granted  subject  to  the  terms  of  any  contract  which  may    be  made 

between  the  governor  and  the  occupier  not  inconsistent  with  the  provisions  of 

this  proclamation,  or  any  of  them ; 

Provided,  that  the  governor  shall  not  (save  in  the  case  of  a  right  granted  in 
connection  with  a  mining  lease)  grant  rights  of  occupancy  free  of  rent  or  upon 
any  conditions  which  may  preclude  him  from  receiving  the  rent  at  intervals  of 
not  more  than  seven  years. 

7.  An  occupier  shall  have  exclusive  rights  to  the  land  granted  to  him  against 
all  persons  except  the  governor. 

8.  It  shall  not  be  lawful  for  any  occupier  to  alienate  his  right  of  occupancy 
by  sale,  mortgage,  or  transfer  of  possession  without  the  consent  of  the  governor 
first  had  and  obtained.  And  any  such  sale,  mortgage,  or  transfer  effected  with- 
out the  consent  of  the  governor  shall  be  null  and  void. 

9.  It  shall  not  be  lawful  for  the  governor  to  revoke  rights  of  occupancy 
granted  as  aforesaid  except  for  good  cause.    "  Good  cause  "  shall  include — 

(a)  Non-payment  of  rent,  taxes,  or  other  duties  imposed  upon  the  land; 

(&)  Alienation  by  sale,  mortgage,  or  transfer  of  possession  without  the 
consent  of  the  governor ;  and, 

(c)  Requirement  of  the  land  by  the  Government  for  public  purposes. 
Provided  always  that — 

(a)  Should  the  rental  demanded  by  the  governor  from  the  occupier  be 
raised  on  revision,  the  occupier  may  surrender  his  rights  and  shall 
in  that  case  be  entitled  to  compensation  from  the  governor  to  the 
value  at  the  date  of  surrender  of  his  unexhausted  improvements; 
and, 

(h)  Should  any  occupier  be  compelled  to  surrender  his  rights  owing 
to  the  requirement  of  thie  land  by  the  Government  for  public  pur- 
poses, he  shall  be  entitled  to  compensation  for  the  value  at  the 
date  of  surrender  of  his  unexhaustexl  improvements  and  for  the 
inconvenience  caused  by  his  disturbance. 

10.  The  devolution  of  the  rights  of  an  occupier  upon  death  shall  be  regulated^ 
in  the  case  of  natives,  by  the  native  custom  existing  in  the  locality  in  which 
the  land  is  situated,  and,  in  the  case  of  non-natives,  by  the  law  of  the  deceased 
person's  domicile. 

11.  (1)  It  shall  be  lawful  for  the  governor,  when  granting  a  right  of  occu- 
pancy, to  issue  a  certificate  thereof  under  his  hand  and  the  seal  of  the  pro- 
tectorate in  the  form  1  set  out  in  the  second  schedule  hereto,  or  to  the  like 
effect.  Any  such  certificate  shall  be  deemed  to  be  an  instrument  affecting  land, 
and  shall  be  registered  in  accordance  with  the  provisions  of  Part  II  of  this 
proclamation.     (2)  Any  person  entitled  to  a  right  of  occupancy  may  apply  for 


THE   QUESTION   OF  ABORIGINES  IN   THE  LAW   OF   NATIONS.       83 

a  certificate,  which  may  be  granted  in  the  same  manner  and  subject  to  the  same 
conditions  as  in  subsection  1  hereof. 

12.  Every  such  certificate  shall  be  deemed  to  contain  provisions  to  the  fol- 
lowing effect : 

(a)  That  the  occupier  binds  himself  to  the  governor  to  pay  compensa- 

tion for  any  damage  caused  to  native  individuals  or  communities 
in  the  exercise  of  the  rights  granted  to  him  and  to  accept  the 
ruling  of  the  governor  as  to  the  amount  of  such  compensation ; 

(b)  That  the  occupier  binds  himself  to  pay  to  the  governor  the  amount 

found  to  be  payable  in  respect  of  any  unexhausted  improvements 
existing  on  the  land  at  the  date  of  his  entering  into  occupation ; 

(c)  That  the  occupier  binds  himself  to. pay  to  the  governor  the  rent  fixed 

by  the  governor  and  any  rent  which  may  be  fixed  on  revision  in 
accordance  with  the  provisions  of  this  proclamation. 

13.  In  determining  the  rent  to  be  demanded  for  any  given  land  and  on  any 
subsequent  revision  of  rent  the  governor  shall  take  into  consideration  the  rent 
obtained  or  obtainable  in  respect  of  any  other  like  land  in  the  immediate 
neighborhood,  and  shall  fix  the  rent  at  the  highest  amount  that  can  reasonably 
be  obtained  for  the  land ;  provided  that  in  determining  the  amount  of  any  rent, 
whether  original  or  revised,  the  governor  shall  not  take  into  consideration  any 
value  due  to  capital  expended  upon  the  land  by  the  same  or  any  previous  occu- 
pier during  his  term  or  terms  of  occupancy,  or  any  increase  in  the  value  of  the 
land  the  rental  of  which  is  under  consideration,  due  to  the  employment  of  such 
capital. 

14.  All  claims  arising  under  the  provisions  of  this  proclamation  in  respect 
of  any  right  granted  under  a  certificate  of  occupancy  shall  be  prosecuted  before 
the  Supreme  Court,  which  court  shall  have  jurisdiction  throughout  the  protec- 
torate accordingly;  and  the  chief  justice  of  the  protectorate  shall  have  power 
to  make  rules  as  to  the  prosecution  of  such  claims  and  matters  relating  thereto 
in  the  same  manner  as  in  matters  concerning  the  ordinary  jurisdiction  of  the 
court. 

15.  Nothing  in  this  proclamation  shall  be  deemed  to  affect  the  validity  of 
any  title  to  land  or  any  interest  therein  acquired  before  the  date  of  the  com- 
mencement hereof,  but  all  such  titles  shall  have  the  same  effect  and  validity  in 
all  respects  as  though  this  proclamation  had  not  been  enacted. 

(Revised  Laws  of  Northern  Nigeria,  1910,  ch.  65,  p.  667.) 

A  land  system  similar  to  that  of  Northern  Nigeria  was  put  in 
force  by  the  British  Government  in  British  NeAv  Guinea  in  1906. 
All  the  land  in  the  colony,  except  21,920  acres  of  freehold,  was  ac- 
quired by  the  Crown  and  leased  for  99  years,  with  free  survey  and 
free  of  rent  for  10  years,  rent  being  payable  after  10  years. 

(P^pua,  or  British  NeAv  Guinea,  by  J.  H.  P.  Murray,  London,  1912, 
pp.  339-344:.) 

In  a  publication  of  the  International  Colonial  Institute  of  Brus- 
sels, in  six  volumes,  which  appeared  betAveen  1898  and  1905,  entitled 
"  The  Land  System  in  Colonies  " — Le  Regime  Fonder  des  Colonies^ 
the  principles  applied  by  the  different  States  respecting  the  disposi- 
tion of  the  land  in  countries  inhabited  by  aboriginal  tribes  brought 
under  their  sovereignty  were  examined  and  the  important  statutes 
and  regulations  quoted  in  full.    From  this  study  it  appears  that  th  o 


:84        THE   QUESTION    OF   ABORIGINES   IN   THE   LAW   OF   NATIONS. 

system  pursued  by  the  United  States  in  its  dealings  with  lands  oc- 
cupied by  aborigines  is  followed  by  all  colonizing  States.  The, 
extent  of  the  lands  regarded  as  "  vacant,"  and  hence  as  belonging  to 
the  colonizing  State  in  fee  simple,  as  "  public  lands,"  or  "  Crown 
lands  "  varies  according  to  peculiar  circumstances  of  each  case.  The 
rights  respecting  the  land  conceded  by  the  colonizing  State  to  the 
aboriginal  tribes  or  communities  and  their  members  also  vary  in 
character  according  to  the  capacity  of  the  aborigines  and  the  nature 
of  the  aboriginal  customs  with  regard  to  individual  use  or  owner- 
ship of  the  land. 

In  colonies  w^hich  contain  large  tracts  of  land  suitable  only  for 
grazing  purposes  where  the  aborigines  have  flocks  and  herds  and  the 
principal  business  of  the  colonists  is  stock  raising,  the  settlement  of 
the  land  question  is  always  difficult.  The  colonists  and  the  aborigines 
:are  in  such  cases  in  economic  competition  with  each  other  and,  the 
native  operations  being  unscientifically  conducted,  the  competition 
tends  to  become  bitter.  Moreover,  the  need  of  the  aborigines  to  have 
land  for  grazing  induces  them  to  claim  large  tracts,  which  the  colo- 
nists are  unwilling  to  allow  them.  Thus  the  economic  competition 
tends  to  lead  to  war  between  the  colonists  and  the  aborigines,  which 
invariably  results  in  the  more  or  less  complete  extinction  of  the  abo- 
rigines. The  settlement  of  the  land  question  then  proceeds  on  the 
basis  of  granting  the  survivors  of  the  defeated  tribes  such  compensa- 
tion in  reserves  of  land  as  the  embittered  feelings  of  the  colonists 
will  allow.  Such  has  been  the  experience  in  the  grazing  regions  of 
Australia  and  southwest  Africa. 

In  States  and  self-governing  colonies  in  regions  suitable  for  white 
residence  and  capable  of  supporting  a  manufacturing  and  mining 
population,  the  civilized  population  tends  to  overwhelm  the  aborig- 
ines and  to  reduce  their  land  holdings  to  a  minimum.  The  close  con- 
tact of  the  two  elements  of  the  population  permits  of  the  handling 
of  the  problem  by  direct  means,  and  the  tendency  is,  in  case  the  abo- 
rigines have  been  heretofore  deprived  of  a  just  proportion  of  the 
lands,  for  States  and  self-governing  colonies  to  allot  public  land  to 
them  or  even  to  acquire  land  by  condemnation  in  order  to  satisfy 
their  just  claims  as  original  occupants  of  the  soil.  This  pi:actice 
seems  to  have  been  adopted  since  about  1905  by  the  civilized  States 
exercising  sovereignty  in  the  southern  part  of  Africa.  Especially 
where  the  labor  problem  becomes  acute  and  the  economic  needs  of 
the  colonists  coincide  with  the  moral  and  legal  duties  of  the  coloniz- 
ing State,  this  more  liberal  practice  concerning  the  adjustment  of  the 
rights  of  the  aborigines  to  land  tends  to  prevail. 


CHAPTER  VII. 

THE    RIGHTS    OF    ABORIGINES    TO    PERSONAL.    LIBERTY    AND    PERSONAL 

PROPERTY. 

(A)    ENSLAVEMENT  OF  ABOEIGTNES. 

The  question  of  the  right  of  aboriginal  peoples  to  personal  liberty 
is  inex^ricabl}^  interwoven  with  the  question  of  slavery  and  the  slave 
trade,  since  it  is  only  as  respects  aboriginal  peoples,  and  on  the 
ground  of  guardianship  that  slavery  and  the  slave  trade  have  ever 
been  accepted  as  legal  according  to  the  law  of  nations.  Slavery  has 
been  justified  on  the  ground  that  a  State  may  delegate  to  private 
persons  its  functions  concerning  the  uncivilized  persons  under  its 
sovereignty  as  political  and  civil  minors.  The  situation  of  slaves 
has  been  regarded  as  resembling  that  of  civilized  minors,  whom  the 
State  requires  to  be  apprenticed  to  persons  expert  in  an  art  or  a 
science,  so  that  they  may  be  trained  in  the  art  or  science.  The  slave 
trade  has  been  justified  as  an  incident  of  the  power  of  the  State  to 
authorize  or  permit  the  enslavement  of  uncivilized  persons.  Slav- 
cry  of  uncivilized  peoples  has  also  been  justified  by  the  same  course 
of  reasoning  that  villeinage  and  serfdom  were  justified  under  the 
Eoman  and  feudal  systems,  the  foundation  principle  being  that  all 
society  should  be  organized  in  grades  of  supremacy  corresponding 
to  the  actual  social  stratification. 

When  the  first  negroes  were  gersuaded  to  leave  Africa  and  trans- 
ported across  the  ocean  to  be  the  slaves  of  civilized  individuals,  who 
were  themselves  influenced  in  their  actions  by  Christian  priests,  the 
institution  of  slavery  and  of  the  slave  trade  appeared  to  be  but  a 
means  for  the  civilization  of  the  African-  aborigines,  especially  when 
liberal  provisions  were  made  for  the  manumission  of  slaves  or  for 
their  naturalization  upon  attaining  to  civilized  knowledge  and  skill. 

As  the  process  of  deporting  negroes  from  Africa  for  enslavement 
increased  in  extent,  and  as  slavery  and  the  slave  trade  became  more 
and  more  commercially  profitable,  these  institutions  began  to  reveal 
themselves  in  their  true  character  as  abominations  inconsistent  with 
the  fundamental  principles  upon  which  civilization  is  based. 

Nevertheless,  when  the  question  of  the  rights  and  duties  of  civilized 
States  toward  aboriginal  populations  came^up  for  international  de- 
cision in  the  middle  of  the  eighteenth  century,  the  unanimous  con- 

85 


86        THE    QUESTION    OF   ABORIGINES   IN    THE   LAW   OF   NATIONS. 

elusion  was  that  each  State  was  under  no  international  obligation 
whatever  as  to  the  manner  of  exercising  its  guardianship  over 
aborigines,  and  that  under  the  law  of  nations  neither  slavery  nor 
the  slave  trade  was  illegal,  though,  on  account  of  its  nature,  its  pro- 
hibition by  any  State  to  its  own  citizens  could  not  be  a  cause  of  com- 
plaint by  other  States. 

The  declaration  of  the  fundamental  rights  of  the  individual  in  the 
preamble  of  the  American  Declaration  of  Independence  in  1776,  the 
similar  French  Declaration  in  1791,  and  the  act  of  France  abolishing 
slavery  of  1794  (which  continued  in  force  till  1802,  when  the  old 
system  of  slavery  and  the  code  noir  were  reestablished  by  Napoleon) , 
led  to  a  reconsideration  of  the  principles  of  the  law  of  nations  as 
respects  enslavement  of  aboriginal  peoples,  and  to  a  movement  for 
abolishing  and  outlawing  the  slave  trade. 

The  act  of  the  United  States  of  1794,  prohibiting  to  American 
citizens  the  slave  trade  with  colonies  of  foreign  States,  was  followed 
by  the  entire  prohibition  of  the  slave  trade  by  Great  Britain  to  its 
citizens  in  1807  and  the  entire  prohibition  of  the  trade  by  the  United 
States  to  its  citizens  in  1808.  These  acts  led  to  captures  of  slave- 
trading  vessels,  and  the  admiralty  courts  were  called  upon  to  declare 
and  apply  the  principles  of  the  law  of  nations  in  this  regard. 

In  the  case  of  The  Amedie,  decided  in  the  British  Court  of  Ad- 
miralty in  1811,  it  was  said  by  Sir  William  Grant  (.Dodson's  Ad- 
miralty Reports,  p.  84,  note) : 

In  all  the  former  cases  of  [this]  kind  which  have  come  before  this  court, 
the  slave  trade  was  liable  to  considerations  very  different  from  those  which 
belong  to  it  now.  It  had  at  that  time  been  prohibited  [as  far  as  respected 
carrying  slaves  to  the  colonies  of  foreign  nations]  by  America,  but  by  our  own 
laws  it  was  still  allowed.  It  appeared  to  us,  therefore,  difficult  to  consider  the 
prohibitory  law  of  America  in  any  other  light  than  as  one  of  those  municipal 
regulations  of  a  foreign  State  of  which  this  court  could  not  take  any  cognizance. 
But  by  the  alteration  which  has  since  taken  place,  the  question  stands  on 
different  grounds,  and  is  open  to  the  application  of  very  different  principles. 
The  slave  trade  has  since  been  totally  abolished  by  this  country,  and  our  legis- 
lature has  pronounced  it  to  be  contrary  to  the  principles  of  justice  and 
humanity.  Whatever  we  might  think  as  individuals  before,  we  could  not,  sit- 
ting as  judges  in  a  British  court  of  justice,  regard  the  trade  in  that  light  while 
our  own  laws  permitted  it.  But  we  can  now  assert  that  this  trade  can  not, 
abstractedly  speaking,  have  a  legitimate  existence. 

When  I  say  abstractedly  speaking,  I  mean  that  this  country 'has  no  right  to 
control  any  foreign  legislature  that  may  think  fit  to  dissent  from  this  doc- 
trine, and  to  permit  to  its  ow^n  subjects  the  prosecution  of  this  trade;  but  we 
have  now  a  right  to  affirm  that  prima  facie  the  trade  is  illegal,  and  thus  to 
throw  on  claimants  the  burden  of  proof  that,  in  respect  of  them,  by  the  au- 
thority of  their  own  laws,  it  is  otherwise.  As  the  case  now  stands,  we  think 
w^e  are  entitled  to  say  that  a  claimant  can  have  no  right,  upon  principles  of 
universal  law,  to  claim  the  restitution,  in  a  prize  court,  of  human  beings 
claimed  as  his  slaves.    He  must  show  some  right  that  has  been  violated  by  the 


THE   QUESTTON   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS.       87 

capture,  some  property  of  which  he  has  been  dispossessed,  and  to  which  he 
ought  to  be  restored.  In  this  case  the  laws  of  the  claimant's  country  allow  of 
no  property  such  as  he  claims.    There  can,  therefore,  be  no  right  to  restitution. 

Commenting  on  the  case  of  The  Amedie^  Sir  William  Scott,  in  the 
High  Court  of  Admiralty  in  the  case  of  The  Fortuna^  decided  March 
12,  1811  (Dodson,  81),  said: 

A  late  decision,  in  the  case  of  The  Amedie,  seems  to  have  gone  the  length  of 
establishing  a  principle  that  any  trade  contrary  to  the  general  law  of  nations, 
although  not  tending  to  or  accompanied  with  any  infraction  of  the  belligerent 
rights  of  that  country  whose  tribunals  are  called  upon  to  consider  it,  may 
subject  the  vessel  employed  in  that  trade  to  confiscation.  The  Amedie  was  an 
American  ship  employed  in  carrying  on  the  slave  trade;  a  trade  which  this 
-country,  since  its  own  abandonment  of  it,  has  deemed  repugnant  to  the  law  of 
nations,  to  justice  and  humanity,  though  without  presuming  so  to  consider 
and  treat  it,  where  it  occurs  in  the  practice  of  the  subjects  of  a  State  which 
continues  to  tolerate  and  protect  it  by  its  own  municipal  legislation;  but  it 
puts  upon  the  parties  who  are  found  in  the  occupation  of  that  trade"  the  burden 
of  showing  that  it  was  so  tolerated  and  protected ;  and  on  failure'  of  producing 
such  proof,  proceeds  to  condemnation.  *  *  *  The  principle  laid  down  In 
that  case  appears  to  be  that  the  slave  trade,  carried  on  by  a  vessel  belonging 
to  a  subject  of  the  United  States,  is  a  trade  which,  being  unprotected  by  the 
domestic  regulations  of  the  United  States,  subjects  the  vessel  engaged  in  it 
to  a  sentence  of  condemnation. 

In  the  case  of  The  Diana,  decided  in  the  British  Court  of  Admi- 
ralty in  1813,  the  court,  speaking  by  Sir  William  Scott,  said  (Dod- 
son, 95)  : 

This  trade  was  at  one  time,  we  know,  universally  allowed  by  the  different 
nations  of  Europe  and  carried  on  by  them  to  a  greater  or  less  extent,  according 
to  their  respective  necessities.  Sweden,  having  but  small  colonial  possessions, 
did  not  engage  very  deeply  in  the  traffic,  but  she  entered  into  it  as  far  as  hei; 
convenience  required  for  the  supply  of  her  own  colonies.  The  trade,  which  was 
generally  allowed,  has  been  since  abolished  by  some  particular  countries;  but 
I  am  yet  to  learn  that  Sweden  has  prohibited  its  subjects  from  engaging  in  the 
traffic,  or  that  she  has  abstained  from  it  either  in  act  or  declaration.  Our  own 
country,  it  is  true,  has  taken  a  more  correct  view  of  the  subject  and  has  de- 
creed the  abolition  of  the  slave  trade,  as  far  as  British  subjects  are  concerned, 
but  it  claims  no  right  of  enforcing  its  prohibition  against  the  subjects  of  those 
States  which  have  not  adopted  the  same  opinion -with  respect  to  the  injustice 
and  immorality  of  the  trade. 

The  principle  *  *  *  laid  down  by  the  superior  court  [in  the  case  of 
The  Amedie]  *  *  *  was  that  where  the  municipal  laws  of  the  country  to 
which  the  parties  belong  have  prohibited  the' trade,  the  tribunals  of  this  country 
will  hold  it  to  be  illegal  upon  the  general  principles  of  justice  and  humanity 
and  refuse  restitution  of  the  property;  but  on  the  other  hand,  though  they 
consider  the  trade  to  be  generally  contrary  to  the  principles  of  justice  and 
humanity  where  not  tolerated  by  the  laws  of  the  country,  they  will  respect 
the  property  of  persons  engaged  in  it  under  the  sanction  of  the  laws  of  their 
own  country.  The  lords  of  appeal  did  not  mean  to  set  themselves  up  as  legis- 
lators for  the  whole  world,  or  presume  in  any  manner  to  interfere  with  the 
commercial  regulations  of  other  states,  or  to  lay  down  general  principles  which 
aim  to  overthrow  their  legislative  provisions  with  respect  to  the  conduct  of 
their  own  subjects. 


88       THE   QUESTION   OF  ABORIGINES  IN   THE  LAW   OF   NATIONS. 

At  the  Congress  of  Vienna  the  British  Government,  which  had  suc- 
ceeded in  1814  in  making  a  treaty  with  France  for  the  prohibition  of 
the  slave  trade  to  its  citizens  at  the  expiration  of  eight  years,  en- 
deavored to  obtain  a  general  pronouncement  of  the  nations  forming 
the  Concert  of  Europe  against  the  slave  trade.  The  preliminary- 
question,  whether  the  slave  trade  should  be  declared  to  be  illegal  by 
the  existing  law  of  nations,  or  should  be  recognized  as  legal  by  the 
existing  law  but  subject  to  abolition  by  the  uniform  and  cooperative 
action  of  the  nations  as  contrary  to  humanity  under  existing  condi- 
tions, was  settled  by  Great  Britain  making  a  treaty  with  the  United 
States  providing  for  compensation  for  all  slaves  of  American  citi- 
zens captured  during  the  war  and  a  treaty  with  Portugal  fixing  the 
damages  to  be  paid  by  Great  Britain  for  its  illegal  capture  of  the 
Portuguese  ships. 

Almost  immediately  upon  the  signing  of  the  treaty  between  Great 
Britain  and  .Portugal,  a  special  series  of  meetings  of  the  eight  powers 
then  assembled  in  the  so-called  Congress  of  Vienna  was  held  to  con- 
sider the  measures  to  be  taken  by  uniform  and  cooperative  action 
to  abolish  the  slave  trade.  The  following  are  the  material  parts  of 
the  proceedings  of  these  meetings  (British  and  Foreign  State  Pa- 
pers, 1815-16,  pp.  946-948)  : 

Lord  Castlereagh  renewed  his  proposition  that  the  Congress  talve  up  the 
question  of  the  measures  to  be  taken  to  bring  about  the  cessation  universally 
of  the  negro  slave  trade.  He  stated  that,  in  his  opinion,  it  was  not  necessary 
to  appoint  for  this  purpose  a  committee  properly  so  called,  but  that  the 
proper  course  was  to  consider  the  question  in  the  assembly  of  the  eight 
powers.  He  proposed  that  each  power  should  select  one  of  its  plenipotentiaries 
and  that  these  persons  should  hold  special  sessions  exclusively  devoted  to  this 
object,  making  report  of  the  result  of  their  deliberations  to  the  general  as- 
sembly of  the  Congress. 

The  Count  of  Palmella  [plenipotentiary  for  Spain]  objected  to  this  pro- 
posal, declaring  that  he  saw  no  reason  why  the  general  arrangeinent  there- 
tofore observed  by  the  Congress,  that  only  the  powers  more  or  less  interested 
in  the  matters  under  consideration  should  take  part  in  the  discussion  of  these 
matters,  should  not  equally  apply  to  the  question  of  the  abolition  of  the  negro 
slave  trade ;  a  question  which  concerned  exclusively  the  powers  possessing 
colonies.  He  was  opposed  to  the  proposal  to  deliberate  on  the  question  in  a 
committee  composed  of  plenipotentiaries  of  the  eight  powers.  He  thought 
that  the  powers  not  possessing  colonies,  after  having  committed  themselves  to 
the  principle  of  abolition,  could  not  be  considered  as  entirely  impartial  as 
respects  those  of  the  powers  having  colonies  which  were  hindered  in  putting 
the  principle  into  execution  by  their  particular  interests;  and  might,  perhaps, 
influenced  by  a  zeal  praiseworthy  in  itself,  hasten  the  progress  of  abolition 
at  the  expense  of  the  States  whose  special  circumstances  obligated  them  to 
proceed  with  the  greatest  prudence. 

The  Chevalier  Labrador  [plenipotentiary  of  Portugal],  stated  that  he  shared 
the  opinion  of  Count  Palmella,  and  observed :  That  inasmuch  as  all  the  powers 
were  already  agreed  upon  the  general  principle  of  the  abolition  of  the  slave 
trade,  it  would  be  useless  to  make  it  a  subject  of  discussion;  that  the  only 


THE  QUESTION   OF  ABORIGINES  IN   THE  LAW   OF   NATIONS.       81) 

matters  to  be  considered  were  tlie  measures  for  carrying  the  principle  into 
effect,  and,  above  all,  the  fixing  of  the  date  at  which  the  trade  should  cease; 
that  these  matters,  inasmuch  as  they  involve  entirely  details  and  local  con- 
siderations, could  not  properly  be  discussed  except  by  the  powers  possessing 
colonies  and  that  it  would  be,  if  not  unjust,  at  least  useless,  to  admit  the 
other  powers;  that  it  was  an  easy  matter  to  condemn  the  slave  trade  by 
general  assertions  of  principle,  but  that  those  powers  whose  colonial  systems 
had  been  based  up  to  this  time  upon  the  importation  of  negroes,  found  them- 
selves, so  to  speak,  placed  between  two  injustices,  one  toward  the  inhabitants 
of  Africa,  the  other  toward  their  own  subjects,  the  agricultural  proprietors  in 
the  colonies,  whose  interests  would  be  seriously  affected  by  k  too  sudden 
change  in  the  present  system ;  that  this  last  consideration  was  of  special  im- 
portance for  Spain,  because  the  state  of  agitation  prevailing  in  the  Spanish 
colonies  on  the  mainland  in  America  imposed  on  the  Spanish  Government  the 
duty  of  redoubling  its  efforts  for  the  conservation  of  peace  and  prosperity  in 
the  islands  of  Cuba  and  Porto  Rico.  He  concluded  by  declaring  that  his 
Catholic  Majesty,  though  in  the  highest  degree  desirous  of  abolishing  the 
slave  trade,  could  not  bind  himself  to  the  abolition  of  it  at  the  end  of  a  shorter 
time  than  eight  years. 

The  plenipotentiaries  of  Russia,  Austria,  Prussia,  and  Sweden  [Count  Nessel- 
rode.  Prince  Metternich,  Baron  Humboldt,  and  Count  Lowenhielm]  announced 
it  as  their  opinion  that  as  a  question  of  public  morality  and  of  humanity  the 
abolition  of  the  slave  trade  undoubtedly  interested  all  the  powers;  that  those 
not  possessing  colonies  did  not  pretend  to  direct  the  details  of  carrying  into 
effect  such  a  measure ;  but  that  inasmuch  as  there  was  a  division  of  opinion 
among  the  powers  directly  interested  in  this  matter  as  respects  these  details, 
and  particularly  as  regards  the  date  to  be  fixed  for  abolition,  the  intervention 
of  the  others  will  be  always  useful  in  order  to  conciliate  the  opinions  and  bring 
about  a  result  conformable  to  the  views  of  humanity  at  large. 

Lord  Castlereagh  declared  that  England,  though  attaching  to  the  abolition 
of  the  slave  trade  a  very  far-reaching  importance,  was  nevertheless  far  from 
wishing  to  lay  down  the  law  in  this  respect  to  any  other  power;  that  the  pe- 
riod of  the  duration  of  the  trade  and  the  inanner  of  arranging  gradually  for  the 
suppression  of  this  traffic  were  undoubtedly  questions  upon  which  each  power 
possessing  colonies  might  properly  have  its  particular  views,  but  that  a  com- 
mittee exclusively  composed  of  the  plenipotentiaries  of  these  powers  would  not 
respond  to  the  object  which  he  had  in  mind  in  introducing  the  discussion  of  this 
matter ;  that  it  was  a  question  of  knowing  authentically  the  sentiments  and 
point  of  view  of  the  principal  powers  in  regard  to  a  matter  which  was  also  of 
general  interest;  and  that  he  regarded  the  manner  of  deliberation  proposed 
by  him  as  the  only  one  suitable  to  furnish  in  this  respect  a  satisfactory 
elucidation. 

At  the  conclusion  of  the  discussion  Prince  Metternich  formulated  the  point 
on  which  the  assembly  was  to  pronounce  in  the  following  language :  "  Ought 
the  matter  of  the  abolition  of  the  negro  slave  trade  to  be  sent  in  the  first 
instance  to  a  committee  composed  of  plenipotentiaries  of  the  powers  possessing 
colonies  or  ought  it  to  be  considered  ah  initio  by  the  assembled  plenipotentiaries 
of  the  eight  powers?  " 

The  plenipotentiaries  of  Portugal  and  Spain  persisted  in  their  opinion  that 
if  the  discussion  was  adjudged  to  be  absolutely  necessary,  only  the  ministers 
of  the  powers  possessing  colonies  should  be  admitted  to  participate.  Couni 
Palmella  asked,  further,  that  in  case  the  contrary  opinion  should  prevail,  there 
should  be  inserted  in  the  minutes  of  the  proceedings  a  statement  to  the  effect 
that  the  plenipotentiaries  of  Portugal,  without  withdrawing  from  the  common 


90       THE  QUESTION   OF  ABORIGINES  IN    THE   LAW  OF   NATIONS. 

deliberations,  do  not  regard  the  question  which  is  to  be  considered  as  one  of 
public  law.  On  the  other  hand,  the  plenipotentiaries  of  England,  Russia, 
Austria,  Prussia,  Sweden,  and  France  voted  against  the  special  committee 
and  for  the  intervention  of  the  eight  powers  in  this  question. 

Lord  Castlereagh,  referring  to  his  original  proposal,  said  that  he  did  not 
mean  to  insist  on  only  one  plenipotentiary  of  each  power  being  admitted  to  the 
deliberations ;  that  the  number  of  those  who  should  participate  was  immaterial ; 
that  his  intention  had  only  been  to  have  certain  special  sessions  devoted  to 
this  matter,  in  order  that  it  might  be  considered  in  a  consecutive  manner  and 
so  as  to  fit  in  with  the  time  required  for  other  business. 

At  the  conference  on  February  4,  1815,  consideration  was  given 
the  British  proposition  to  establish  a  permanent  commission  of  sur- 
veillance, which  should  hold  its  meetings  in  London  and  was  to  be 
composed  of  the  diplomatic  representatives  of  the  eight  powers  at 
the  Courts  of  London  and  Paris.  The  resolution  was  as  follows 
(British  and  Foreign  State  Papers,  1815-16,  pp.  963-966) : 

In  order  to  place  the  powers  in  a  position  to  carry  out  more  effectively  and 
more  completely  by  amicable  negotiations  their  beneficent  intentions  with 
regard  to  the  abolition  of  the  negro  slave  trade,  as  stated  in  their  joint  decla- 
ration, and  in  order  to  establish  between  themselves  and  with  other  govern- 
ments, a  concert  which  shall  be  adapted  both  to  break  up  illegal  slave  trade 
on  the  coast  of  Africa,  and  at  the  same  time  to  prevent  infraction  of  the  rights 
of  any  independent  State  by  the  armed  vessels  of  another  State,  it  is  pro- 
posed : 

That  the  ministers  accredited  to  London  and  Paris  by  the  powers  now  in 
conference  and  by  other  powers  who  may  desire  to  join  in  the  arrangement,  be 
authorized  to  discuss  conjointly  the  important  matters  above  mentioned,  and  be 
directed  to  make  a  joint  report  at  the  end  of  each  year,  for  the  information 
of  their  respective  courts,  upon  the  situation  as  respects  trade  in  African 
negroes,  based  upon  the  most  recent  information  obtainable,  and  in  regard 
to  the  progress^ made  by  the  nations  concerned  in  diminishing  or  abolishing  the 
trade. 

The  Chevalier  de  Labrador  [plenipotentiary  for  Spain],  objected 
to  such  an  arrangement,  asserting  that  "  everything  which  relates 
to  the  slave  trade  is  a  domestic  matter  for  each  State,  and  not  at  all 
within  the  jurisdiction  of  the  congress,  which  has  not  been  called 
together  to  regulate  the  legislation  of  the  nations,  or  to  decide  ques- 
tions of  morality  " ;  and  that  "  consequently  it  is  only  by  an  act  of 
pure  condescension  on  the  part  of  the  powers  which  have  colonies 
that  the  congress  is  considering  the  slave  trade."  He  then  an- 
nounced that  the  King  of  Spain  "  would  not  accord  to  one  or  more 
powers  the  right  of  exercising  upon  his  subjects  any  act  of  surveil- 
lance under  the  pretext  that  they  have  violated  a  rule  which  has 
been  established." 

Prince  Metternich,  evidently  expressing  the  sentiments  of  the 
majority  of  the  congress,  said,  as  reported  in  the  minutes : 

He  was  of  the  opinion  that  the  project  advanced  by  Lord  Castlereagh  was 
not  merely  practicable  and  useful,  but  was  really  necessary,  in  order  to  follow 


THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF   NATIONS.       91 

lip  and  keep  before  the  public  the  question  under  discussion  and  to  prevent  it 
from  being  again  dropped  and  consigned  to  oblivion  after  the  congress.  He 
believed  that  in  order  to  put  each  government  in  the  position  of  taking  part  in 
the  deliberations  regarding  the  execution  of  measures  and  the  development  of 
new  measures,  and  of  knowing  the  state  of  things  at  any  given  period,  it  is 
necessary  that  there  should  be  a  central  point  where  each  State  should  be  able 
to  inform  itself.  For  the  same  reasons  he  approved  the  feature  of  annual 
reports  upon  the  progress  made  toward  abolition  and  the  obstacles  encountered. 

The  views  of  Austria,  advanced  by  Metternich,  were  approved  by 
the  plenipotentiaries  of  Kussia  and  Prussia,  but  the  colonial  powers, 
other  than  Great  Britain,  objecting,  the  resolution  failed. 

Lord  Castlereagh  then  proposed  a  plan  for  the  economic  boycott 
of  States  not  joining  in  the  abolition  of  the  slave  trade.  His  propo- 
sition was  as  follows : 

As  the  concluding  act  of  the  deliberations  regarding  the  means  of  causing  the 
entire  cessation  of  the  slave  trade,  the  powers  now  convened  for  this  object  are 
invited  to  pronounce  (independently  of  their  general  declaration)  their  full  and 
entire  adhesion  to  the  additional  article  of  the  treaty  concluded  at  Paris  between 
Great  Britain  and  France  as  indicating,  according  to  their  opinion,  the  maxi- 
mum period  which  can  reasonably  be  needed  or  permitted  for  the  continuance 
of  the  trade;  and  to  declare  that  while  recognizing  the  duty  of  respecting 
scrupulously  the  rights  of  other  States,  and  entertaining  the  hope  of  agreeing 
amicably  with  them  on  this  important  branch  of  the  question,  the  powers  be- 
lieve that  they  have  the  moral  obligation,  in  case  their  attempts  at  amicable 
agreement  should  fail,  not  to  permit  that  the  consumption  of  colonial  products 
in  their  territories  should  become  the  means  of  encouraging  and  prolonging 
gratuitously  so  pernicious  a  traffic;  and  to  now  declare  that  in  view  of  the 
existence  of  such  a  moral  obligation  they  reserve  to  themselves  the  right,  in 
case  the  negro  slave  trade  should  be  continued  by  any  State  beyond  a  period 
justified  by  the  actual  necessity  of  the  case,  to  take  suitable  measures  to  obtain 
such  colonial  products  either  from  the  colonies  belonging  to  the  States  which 
have  not  permitted  a  gratuitous  toleration  of  the  traffic,  or  from  the  vast 
regions  of  the  globe  furnishing  the  same  products  by  the  labor  of  their  own 
inhabitants. 

To  this  both  Portugal  and  Spain  objected.  The  minutes  of  the  con- 
gress are  as  follows: 

Count  Palmella  said  that  the  project  implied  the  intention  of  compelling  those 
powers  which  were  not  able,  for  particular  reasons,  to  abolish  the  trade  within 
a  certain  number  of  years  to  submit  themselves  to  the  system  of  those  who  find 
themselves  able  to  do  so  within  the  term,  an  intention  which  was  not  consistent 
with  the  principles  accepted  as  the  basis  of  the  conferences  and  recognized  in 
the  declaration. 

The  plenipotentiary  of  Spain  declared  that  if  such  a  measure  should  be 
adopted  by  any  power  whatsoever,  His  Majesty,  the  King  of  Spain,  without 
disputing  with  this  power  its  right  to  act  according  to  its  own  principles,  would 
have  recourse  to  just  reprisals  by  inducing  the  passage  of  a  prohibitive  law 
against  the  most  valuable  branch  of  the  commerce  of  the  country  whose  Govern- 
ment had  provoked  this  act  of  reciprocity. 

The  project  for  an  international  commission  of  surveillance  to  ad- 
vise the  powers  in  their  cooperative  measures  for  the  abolition  of  the 


92       THE   QUESTION   OP  ABORIGINES  IX   THE   LAW   OF   NATIONS. 

slave  trade  having  failed,  the  far  more  drastic  proposition  for  eco- 
nomic boycott  against  any  colonial  power  refusing  to  cooperate  nec- 
essarily met  the  same  fate.  An  arrangement  was  afterwards  made 
whereby  the  ministers  to  the  French  and  British  courts  held  meetings 
in  London  to  discuss  the  measures  for  the  abolition  of  the  slave  trade. 
The  declaration  of  the  congress  was  as  follows  (British  and  For- 
eign State  Papers,  1815-16,  pp.  971,  972)  : 

Declaration  of  the  Eight  Courts,  relative  to  the  universal  abolition  of  the 
trade  in  negroes,  Vienna,  February  8,  1815. 

The  plenipotentiaries  of  the  powers  which  signed  the  Treaty  of  Paris  of 
May  30,  1814,  assembled  in  conference,  having  taken  into  consideration : 

That  the  commerce  known  under  the  name  of  "  trade  in  the  negroes  of 
Africa  "  has  been  regarded  by  just  and  enlightened  men  of  all  times  as  re- 
pugnant to  the  principles  of  humanity  and  of  universal  morality ; 

That  the  particular  circumstances  to  which  this  commerce  owed  its  rise,  and 
the  difficulty  of  suddenly  interrupting  its  course,  have  had  the  effect  to  con- 
ceal to  a  certain  extent  the  odious  results  which  flow  from  its  maintenance, 
but  that  at  last  the  public  voice  has  raised  itself  in  all  the  civilized  countries 
demanding  that  it  be  suppressed  as  soon  as  possible ; 

That  since  the  character  and  details  of  this  commerce  have  become  better 
known  and  the  evils  of  all  kinds,  which  are  incident  to  it,  have  been  com- 
pletely disclosed,  several  of  the  European  Governments  have  taken  a  de- 
termined resolution  to  bring  about  its  cessation,  and  that,  one  after  another, 
the  powers  possessing  colonies  in  the  different  parts  of  the  world  have  recog- 
nized, either  by  legislative  acts,  or  by  treaties  and  other  formal  engagements, 
the  obligation  and  the  necessity  of  abolishing  it ; 

That  by  a  separate  article  in  the  last  Treaty  of  Paris,  Great  Britain  and 
France  engaged  themselves  to  combine  their  efforts  at  the  Congress  of  Vienna 
to  cause  to  be  pronounced  by  all  the  powers  of  Christianity  the  universal  and 
definitive  abolition  of  the  trade  in  negroes; 

That  the  plenipotentiaries  assembled  in  this  congress  can  not  better  do 
honor  to  their  mission,  fulfil  their  duty,  and  manifest  the  principles  which 
guide  their  august  sovereigns,  than  in  laboring  to  realize  this  engagement  and 
in  proclaiming,  in  the  name  of  their  sovereigns,  the  wish  to  put  an  end  to  an 
evil  which  has  so  long  desolated  Africa,  degraded  Europe,  and  affiicted 
humanity ; 

The  said, plenipotentiaries  have  agreed  to  open  their  deliberations  in  regard 
to  the  means  of  accomplishing  an  object  so  salutary  by  a  solemn  declaration 
of  the  principles  which  have  directed  them  in  this  work. 

In  consequence  of  the  foregoing,  and  being  duly  authorized  to  this  act  by 
the  unanimous  adhesion  of  their  respective  courts  to  the  principle  announced 
in  the  said  separate  article  of  the  Treaty  of  Paris,  they  declare  in  the  face  of 
Europe  that,  regarding  the  universal  abolition  of  the  trade  in  negroes  as  a 
measure  particularly  worthy  of  their  attention,  in  conformity  with  the  spirit 
of  the  age  and  with  the  generous  principles  of  their  august  sovereigns,  they  are 
animated  by  a  sincere  desire  to  cooperate  in  a  most  prompt  and  most  effective 
execution  of  this  measure  by  all  the  means  at  their  disposition,  and  to  act  in 
the  employment  of  these  means  with  all  the  zeal  and  all  the  perseverence  which 
they  owe  to  so  great  and  admirable  a  cause. 

Too  well  instructed,  however,  in  the  sentiments  of  their  sovereigns  not  to 
foresee  that,  however  honorable  may  be  the  end  in  view,  they  will  not  pursue 
it  without  making  just  arrangements  taking  into  account  the  interests,  the 


THE   QUESTION   OF   ABORIGINES  IN   THE   LAW   OF   NATIONS.       93 

<!ustoms,  and  even  the  prejudices  of  their  subjects,  the  said  plenipotentiaries, 
recognizing  at  the  same  time  that  this  general  declaration  can  not  prejudge 
the  term  which  each  power  under  its  particular  circumstances  may  regard  as 
most  convenient  for  the  definitive  abolition  of  the  commerce  in  negroes,  it  fol- 
lows from  the  foregoing  that  the  determination  of  the  time  at  which  this  com- 
merce shall  universally  cease  will  be  an  object  of  negotiation  between  the 
powers,  it  being  understood  that  no  proper  means  to  assure  and  accelerate  the 
progress  toward  abolition  will  be  neglected  and  that  the  reciprocal  engagement 
contracted  by  the  present  declaration  between  the  sovereigns  who  have  taken 
part  in  it  will  be  considered  as  fulfilled  only  at  the  moment  when  a  complete 
success  shall  have  crowned  their  combined  efforts. 

In  bringing  this  declaration  to  the,  attention  of  Europe,  and  all  the  civilized 
nations  of  the  earth,  the  said  plenipotentiaries  are  confident  of  engaging  all  the 
other  Governments,  and  especially  those  which,  by  abolishing  the  trade  in 
negroes,  have  already  manifested  the  same  sentiments,  to  lend  their  assistance 
in  a  cause  the  final  triumph  of  which  will  be  one  of  the  most  admirable  monu- 
ments of  the  age .  which  has  embraced  it  and  which  will  have  brought  it 
to  a  glorious  end. 

At  the  conference  nt  London  between  Austria,  France,  Great 
Britain,  and  Russia,  from  December  14,  1817,  to  February  12,  1818, 
and  at  Aix-la-Chapelle,  from  November  2  to  November  18,  1818,  to 
concert  measures  for  the  suppression  of  the  slave  trade  (British  and 
Foreign  State  Papers,  1818-19,  pp.  21  to  88)  Lord  Castlereagh  pro- 
posed, in  behalf  of  Great  Britain,  two  measures.  The  first  was,  the 
concession  by  all  the  powers  of  a  reciprocal  right  of  search  of  ships 
suspected  of  slave  trade,  limited  to  that  part  of  the  ocean  to  be  de- 
scribed in  the  treaty  frequented  by  slave  ships,  and  regulated  so  as  to 
avoid  harshness;  and  the  second,  the  establishment  of  international 
prize  courts  composed  of  representatives  of  the  powers  so  contract- 
ing to  be  located  on  the  coast  of  Africa  and  on  or  near  the  coast  of 
America. 

The  same  proposal  was  made  to  the  United  States.  (British  and 
Foreign  State  Papers,  1819-20,  pp.  373-385.) 

Prior  to  the  conference  at  Aix-la-Chapelle  Great  Britain  had  suc- 
ceeded in  negotiating  treaties  to  this  effect  with  Spain,  Portugal, 
and  Holland.  The  United  States  had  passed  laws  in  1818  and 
1819,  providing  for  the  punishment  of  its  own  citizens  engaged  in 
the  slave  trade  and  for  the  care  of  rescued  negroes. 

Austria,  France,  Prussia,  Russia,  and  the  United  States  refused  to 
onter  into  the  proposed  arrangement,  regarding  a  reciprocal  right  of 
search  as  derogatory  to  soA^ereignty  and  likely  to  lead  to  ill-feeling 
and  bloodshed.  They  considered  an  international  court  for  the  trial 
of  crimes  committed  in  time  of  peace  on  the  high  seas  to  be  incon- 
sistent with  the  constitutional  right  of  the  citizen  to  be  tried  by  the 
courts  of  his  own  country;  the  act  being  criminal  only  by  virtue  of 
a  national  statute,  and  not  by  virtue  of  the  law  of  nations. 


94        THE   QUESTION    OF   ABORIGINES   IN    THE   LAW   OF   NATIONS. 

At  the  conference  of  Aix-la-Chapelle,  the  plenipotentiary  for 
Eussia  proposed  the  establishment  of  an  international  "  institution,"" 
which  would  in  fact  have  an  international  commission  of  surveillance. 
It  was  to  consist  of  a  body  of  delegates  of  the  European  powers,  who 
were  to  have  their  headquarters  at  some  suitable  settlement  on  the 
west  coast  of  Africa  and  to  hold  sessions  there.  The  commission  was 
to  exercise  the  general  surveillance  over  the  measures  for  abolishing 
the  slave  trade,  to  see  that  the  principles  and  rules  agreed  upon  at 
international  conferences  were  executed,  and  to  adjudicate  cases  of 
alleged  violation  of  such  principles  and  rules  with  power  of  condem- 
nation and  punishment.  The  Russian  plenipotentiary  also  proposed 
an  international  fleet  to  carry  into  effect  the  law  and  the  decisions 
of  the  institution.  This  proposal  was  rejected  by  Great  Britain. 
(British  and  Foreign  State  Papers,  1818-19,  pp.  6T  to  69.) 

In  an  article  by  W.  Alison  Philips  on  The  Congresses  of  1815  to 
1822,  in  the  Cambridge  Modern  History  (vol.  10,  pp.  1-39),  it  is 
said,  referring  to  the  Congress  of  Aix-la-Chapelle : 

Of  more  general  importance  were  the  discussions  on  the  two  great  questions 
of  the  slave  trade  and  the  Barbary  pirates.  On  neither  of  these  was  any 
decision  reached.  The  slave  trade  had  been  condemned  in  principle  by  the 
Congress  of  Vienna ;  and,  as  the  outcome  of  endless  pourparlers,  nearly  all  the 
European  States  had  given  at  least  a  formal  assent  to  the  British  demand 
for  its  suppression.  In  practice,  however,  Great  Britain  alone  showed  any 
activity  in  carrying  out  the  work;  and  the  trade  continued  to  flourish  under 
the  protection  of  national  flags.  The  British  Government  now  proposed  a 
reciprocal  right  of  search,  to  be  carried  out  by  war  vessels  specially  designated 
by  the  powers  for  that  purpose.  But,  in  view  of  the  overwhelming  superiority 
of  England  at  sea,  this  was  taken  as  tantamount  to  a  license  to  British 
cruisers  to  interrupt  the  commerce  of  all  nations,  and  the  powers  rejected  it. 
A  counter  proposal  of  the  Emperor  Alexander  to  establish  an  international 
board  of  control  on  the  west  coast  of  Africa,  with  an  international  fleet  com- 
missioned to  suppress  the  trade,  met  with  no  better  success. 

These  proceedings  with  reference  to  the  abolition  of  the  slave 
trade  by  uniform  and  cooperative  action  in  which  the  United  States 
participated  led  the  United  States  to  consider  its  policy  as  respects 
Africa.  It  was  then  engaged  in  endeavoring  to  settle  satisfactorily 
its  Indian  problem  by  removing  the  Indians  to  the  western  territory, 
there  to  be  governed  as  municipal  communities  composed  of  depend- 
ent persons  in  a  state  of  wardship  and  pupilage.  The  act  of  1819  re- 
quired the  President  to  keep  American  warships  on  the  west  coast 
of  Africa  to  capture  American  ships  engaged  in  the  slave  trade  and 
enjoined  upon  the  commanders  to  settle  the  rescued  negroes  in  Africa. 
In  President  Monroe's  message  of  December  17,  1819,  he  recom- 
mended that  the  United  States  agents  be  sent  to  the  west  coast  of 
Africa  to  oversee  the  settlement  of  these  negroes,  but 

With  the  express  injunction  to  exercise  no  power  founded  on  the  principle 
of  colonization,  or  other  power  than  that  of  performing  the  benevolent  oflfices 


THE   QUESTIOK   OF   ABORIGINES  IN   THE   LAW   OF   NATIONS.       95- 

above  recited,  by  the  permission  and  sanction  of  the  existing  government  under 
which  they  may  establish  themselves. 

The  question  of  the  legality  of  the  slave  trade  under  the  law  of  na- 
tions came  before  the  British  civil  courts  in  1820  in  the  case  of  Madrazo 
V.  Willes,  (3  Barn,  and  Aid.  353).  This  was  an  action  brought  by  a 
Spaniard  against  a  commander  of  a  British  naval  vessel  for  damages 
for  the  seizure  of  a  ship  and  a  cargo  of  slaves. 

Abbott,  C.  J.,  delivering  the  general  opinion,  held  that  the  British 
statute  prohibiting  the  slave  trade  had  no  force  except  with  reference 
to  citizens  of  Great  Britain,  and  that  the  ships  of  Spain,  which  at 
the  time  of  capture  permitted  the  trade,  could  not  be  seized  by  British 
naval  vessels.    Bayley,  J.,  in  a  concurring  opinion,  said : 

It  is  true  that,  if  this  were  a  trade  contrary  to  the  law  of  nations,  a  foreigner 
could  not  maintain  this  action.  But  it  is  not;  and  as  a  Spaniard  can  not  be 
considered  as  bound  by  the  acts  of  the  British  legislature  prohibiting  this  trade, 
it  would  be  unjust  to  deprive  him  of  a  remedy  for  the  wrong  which  he  has 
sustained. 

Best,  J.,  in  his  concurring  opinion,  said : 

If  a  ship  be  acting  contrary  to  the  general  law  of  nations,  she  is  thereby 
subject  to  confiscation;  but  it  is  impossible  to  say  that  the  slave  trade  is  con-^ 
trary  to  what  may  be  called  the  common  law  of  nations. 

In  the  case  of  The  Antelope  (10  Wheat.,  66),  decided  in  1825  by^ 
the  United  States  Supreme  Court,  the  question  was  whether  certain 
Africans,  originally  shipped  by  Spaniards  and  Portuguese  for  sale 
as  slaves  and  found  on  a  Spanish  ship,  were  freed  by  being  brought 
into  a  United  States  port  by  a  United  States  revenue  cutter  in  time 
of  peace.  It  was  held  by  the  court  that  as  they  were  in  a  Spanish 
vessel  and  the  slave  trade  was  allowed  by  the  laws  of  Spain,  they 
must  be  given  up  to  the  consuls  of  Spain  and  Portugal  to  be  returned 
to  their  owners. 

Chief  Justice  Marshall,  in  delivering  the  opinion  of  the  court,  said : 

The  question  whether  the  slave  trade  is  prohibited  by  the  law  of  nations  has 
been  seriously  propounded,  and  both  the  affirmative  and  negative  of  the  proposi- 
tion have  been  maintained  with  equal  earnestness. 

That  it  is, contrary  to  the  law  of  nature  will  scarcely  be  denied.  That  every 
man  has  a  natural  right  to  the  fruits  of  his  own  labor,  is  generally  admitted ; 
and  that  no  other  person  can  rightfully,  deprive  him  of  those  fruits,  and  ap- 
propriate them  against  his  will,  seems  to  be  the  necessary  result  of  this  admis- 
sion. But  from  the  earliest  times  war  has  existed,  and  war  confers  rights  in 
which  all  have  acquiesced.  Among  the  most  enlightened  nations  of  antiquity, 
one  of  these  was,  that  the  victor  might  enslave  the  vanquished.  This,  which 
was  the  usage  of  all,  could  not  be  pronounced  repugnant  to  the  law  of  nations, 
which  is  certainly  to  be  tried  by  the  test  of  general  usage.  That  which  has 
received  the  assent  of  all,  must  be  the  law  of  all. 

Slavery,  then,  has  its  origin  in  force,  but  as  the  world  has  agreed  that  it  is 
a  legitimate  result  of  force,  the  state  of  things  which  is  thus  produced  by 
general  consent,  can  not  be  pronounced  unlawful. 


96        THE   QUESTION    OF   ABORIGINES   IN   THE   LAW   OF   NATIONS. 

Throughout  Christendom  this  harsh  rule  has  been  exploded  and  war  is  no 
longer  considered  as  giving  a  right  to  enslave  captives.  But  this  triumph  of 
humanity  has  not  been  universal.  The  parties  to  the  modern  law  of  nations 
do  not  propagate  their  principles  by  force;  and  Africa  has  not  yet  adopted 
them.  Throughout  the  whole  extent  of  that  immense  continent,  so  far  as  we 
know  its  history,  it  is  still  the  law  of  nations  that  prisoners  are  slaves.  Can 
those  who  have  themselves  renounced  this  law  be  permitted  to  participate  in  its 
effects  by  purchasing  the  beings  who  are  its  victims? 

Whatever  might  be  the  answer  of  a  moralist  to  this  question,  a  jurist  must 
search  for  its  legal  solution  in  those  principles  of  action  which  are  sanctioned 
by  the  usages,  the  national  acts,  and  the  general  assent  of  that  portion  of  the 
world  of  which  he  considers  himself  as  a  part,  and  to  whose  law  the  appeal 
is  made.  If  we  resort  to  this  standard  as  the  test  of  international  law,  the 
question,  as  has  already  been  observed,  is  decided  in  favor  of  the  legality  of  the 
trade.  Both'  Europe  and  America  embarked  in  it ;  and  for  nearly  two  cen- 
turies it  was  carried  on  without  opposition  and  without  censure.  A  jurist  could 
not  say  that  a  practice  thus  supported  was  illegal,  and  that  those  engaged  in  it 
might  be  punished,  either  personally,  or  by  deprivation  of  property. 

In  this  commerce,  thus  sanctioned  by  universal  consent,  every  nation  had 
an  equal  right  to  engage.  How  is  this  right  to  be  lost?  Each  may  renounce 
it  for  its  own  people;  but  how  can  this  renunciation  affect  others? 

No  principle  of  general  law  is  more  universally  acknowledged  than  the 
perfect  equality  of  nations.  Russia  and  Geneva  have  equal  rights.  It  results 
from  this  equality  that  no  one  can  rightfully  impose  a  rule  on  another.  Each 
legislates  for  itself,  but  its  legislation  can  operate  on  itself  alone.  A  right, 
then,  which  is  vested  in  all  by  the  consent  of  all,  can  be  divested  only  by 
consent;  and  this  trade,  in  which  all  have  participated  must  remain  lawful 
to  those  who  can  not  be  ordered  to  relinquish  it.  As  no  nation  can  prescribe 
a  rule  for  others,  none  can  make  a  law  of  nations;  and  this  traffic  remains 
lawful  to  those  whose  governments  have  not  forbidden  it. 

If  it  is  consistent  with  the  law  of  nations,  it  can  not  in  itself  be  piracy.  It 
can  be  made  so  only  by  statute;  and  the  obligation  ot  the  statute  can  not 
transcend  the  legislative  power  of  the  State  which  may  enact  it. 

If  it  be  neither  repugnant  to  the  law  of  nations,  nor  piracy,  it  is  almost 
superfluous  to  say  in  this  court  that  the  right  of  bringing  in  for  adjudication 
in  time  of  peace,  even  where  the  vessel  belongs  to  a  nation  which  has  pro- 
hibited the  trade,  can  not  exist.  The  courts  of  no  country  execute  the  penal 
laws  of  another ;  and  the  course  of  the  American  Government  on  the  subject 
of  visitation  and  search  would  decide  any  case  in  which  that  right  had  been 
exercised  by  an  American  cruiser,  on  the  vessel  of  a  foreign  nation,  not  vio- 
lating our  municipal  laws,  against  the  captors. 

Great  Britain  abolished  slavery  in  the  British  colonies  in  1838, 
paying  the  owners  of  slaves  compensation  for  them.  The  statute 
provided  that  the  condition  of  slavery  was  to  cease  August  1,  1834, 
but  the  former  slaves  were  to  stand  in  the  relation  of  "  apprentices  " 
to  their  former  masters,  some  for  four  and  some  for  six  years.  The 
"  apprenticeship "  proved  an  unsatisfactory  relationship,  and  the 
abolition  of  slavery  in  the  British  colonies  became  complete  for  all 
former  slaves  on  August  1, 1838. 

Meantime  France  established  a  royal  commission  for  the  abolition 
of  slavery  in  the  French  colonies  which  made  an  elaborate  investiga- 


THE   QUESTION   OF  ABORIGINES  IN   THE   LAW  OF   NATIONS.       97 

tion  and  report,  as  a  result  of  which  a  bill  for  abolition  was  passed 
and  abolition  became  complete  in  1848. 

In  1841  Great  Britain,  Austria,  France,  Prussia,  and  Eussia  en- 
tered into  a  treaty  open  to  all  the  powers  for  the  suppression  of  the 
slave  trade  by  granting  to  each  a  reciprocal  limited  right  of  visita- 
tion, search,  and  capture  of  ships  engaged  in  the  slave  trade,  restricted 
to  certain  identified  naval  vessels,  carefully  regulated  and  confined 
to  delimited  areas  of  the  ocean.  In  1842  the  United  States  entered 
into  a  similar  treaty  with  Great  Britain  which  was  supplanted  by  a 
treaty  of  April  7,  1862,  for  the  more  effectual  suppression  of  the 
slave  trade. 

Anti-slavery  congresses  were  held  in  London  in  1840  and  1843,  and 
in  Paris  in  1867. 

In  the  final  act  of  the  Berlin  African  Conference  of  1884^85, 
a  declaration  against  the  slave  trade  was  made,  as  follows : 

Art.  9.  Seeing  that  the  slave  trade  is  forbidden  according  to  the  principles 
of  international  law,  as  recognized  by  the  signatory  powers,  and  seeing  also 
that  the  operations  which,  by  sea  or  land,  furnish  slaves  to  this  trade  are  like- 
wise to  be  regarded  as  forbidden,  the  powers  which  do  or  shall  exercise  sover- 
eign rights  in  the  territories  forming  the  conventional  basin  of  the  Congo  de- 
clare that  those  territories  shall  not  serve  as  a  market  or  means  of  transit  for 
the  trade  in  slaves,  of  whatever  race  they  may  be.  Each  of  the  powers  binds 
itself  to  employ  all  the  means  at  its  disposal  for  putting  an  end  to  this  trade 
and  for  punishing  those  who  engage  in  it. 

The  declaration  that  the  slave  trade  is  "  forbidden,"  followed  by 
the  words  "  according  to  the  principles  of  international  law  as  recog- 
nized by  the  signatory  powers,"  evidently  meant  that,  so  far  as  the 
signatory  powers  were  concerned,  the  old  principles  of  international 
law  according  to  which  the  slave  trade  was  a  legal  operation — or,  at 
least,  not  an  illegal  one — ^liad  been  changed  as  a  result  of  their  indi- 
vidual acts  prohibiting  the  trade  to  their  citizens  and  their  coopera- 
tive and  reciprocal  action  in  concerting  and  executing  measures  for 
abolishing  the  trade.  The  declaration  is  thus  not  a  statement  that 
the  slave  trade  is  contrary  to  the  law  of  nations,  but  only  that  so  far 
as  the  signatory  powers  are  concerned,  as  between  themselves,  it  is 
so  held  and  regarded. 

In  August,  1889,  an  international  colonial  congress,  held  in  Paris 
in  connection  with  the  International  Exposition,  called  attention  to 
the  situation  in  Africa.  In  the  previous  year  Cardinal  Lavigerie  had 
held  a  series  of  meetings  in  the  cities  of  Europe  in  which  he  described 
the  nature  and  extent  of  the  practice  of  slavery  in  Africa  and  in- 
formed the  public  of  the  atrocities  connected  with  the  slave  trade 
which  was  still  being  carried  on.  As  a  result  of  the  efforts  of  the 
various  parties  interested,  an  international  anti-slavery  conference 
was  convened  at  Brussels  in  November,  1889,  which,  on  July  2,  1890, 

89581—19 7 


98       THE   QUESTIOlSr   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

adopted  a  convention  called  a  final  act  of  the  conference,  providing 
further  measures  for  abolishing  African  slavery  and  the  African 
slave  trade. 

The  States  participating  were  the  United  States,  Germany,  Austria, 
Belgium,  Denmark,  Spain,  the  Independent  State  of  the  Congo, 
France,  Great  Britain,  Italy,  Holland,  Persia,  Portugal,  Russia, 
Sweden  and  Norway,  Turkey,  and  Zanzibar.  The  convention  was 
open  to  the  adherence  of  all  States. 

In  the  preamble  the  clauses  declaring  the  motives  and  objects  of 
the  contracting  powers  were  as  follows : 

Being  equally  actuated  by  the  firm  intention  of  putting  an  end  to  the  crimes 
and  devastations  engendered  by  the  traffic  in  African  slaves,  of  efficiently  pro- 
tecting the  aboriginal  population  of  Africa,  and  of  securing  for  that  vast  conti- 
nent the  benefits  of  peace  and  civilization. 

Wishing  to  give  fresh  sanction  to  the  decisions  already  adopted  in  the  same 
sense  and  at  different  times  by  the  powers,  to  complete  the  results  secured  by 
them,  and  to  draw  up  a  body  of  measures  guaranteeing  the  accomplishment 
of  the  work  which  is  the  object  of  their  common  solicitude,  etc. 

The  Berlin  African  conference  had  declared  that  "  the  slave  trade 
is  forbidden  according  to  the  principles  of .  international  law  as 
recognized  by  the  signatory  powers."  The  Brussels  act  was  declared 
to  be  intended  to  "  give  fresh  sanction  to  the  decisions  already 
adopted  in  the  same  sense  by  the  powers."  It  seems  a  fair  inference 
that  the  Brussels  conference  adopted  the  carefully  qualified  declara- 
tion of  the  Berlin  conference. 

The  Brussels  conference  (art.  62  of  the  final  act)  declared  that 
*'the  contracting  powers  whose  institutions  recognize  the  existence 
of  domestic  slavery,  and  whose  possessions,  in  consequence  thereof, 
in  or  out  of  Africa,  serve  in  spite  of  the  vigilance  of  the  authorities 
as  places  of  destination  for  African  slaves,  pledge  themselves  to  pro- 
hibit their  importation,  transit,  and  departure,  as  well  as  the  trade 
in  slaves." 

The  effect  of  this  provision  was  evidently  to  recognize  "  domestic 
slavery  "  as  an  institution  which  might  be  allowed  to  continue  with- 
out violating  the  law  of  nations,  provided  the  State  tolerating  the 
institution  did  not  increase  the  number  of  its  "  domestic  slaves  "  by 
importation.  A  fair  inference  would  seem  to  be  that  the  contracting 
nations  held  that  "domestic  slavery"  was  not  contrary  to  the  law 
of  nations,  but  that  they  intended  to  place  any  extension  of  "  do- 
mestic slavery  "  under  international  cooperative  prohibition. 

The  convention  made  a  declaration  of  the  measures  which  they 
regarded  as  needful  to  be  taken  to  repress  the  slave  trade  in  the 
interior  of  middle  Africa,  on  the  caravan  routes  in  and  leading  to 
middle  Africa,  and  on  the  sea,  and  the  powers  bound  themselves 
severally  to  take  the  necessary  national  measures,  uniformly  and 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.  99 

cooperatively  with  the  others,  so  as  to  give  their  several  actions  a 
unity  of  effect. 

The  zone  of  international  influence  in  Africa  established  by  thd 
Berlin  African  conference  was  largely  increased  by  the  Brussels 
African  conference.  A  plan  urged  by  Great  Britain  for  an  inter- 
national commission  of  surveillance  to  conciliate  the  powers  concern- 
ing the  measures  to  be  taken  in  cooperation  for  abolishing  the  slave 
trade  was  defeated  by  the  objections  of  France,  though  receiving  the 
support  of  the  other  powers.  The  commission  would  have  been 
consisted  of  a  council  of  administration  holding  its  sessions  at  Brus- 
sels and  an  international  bureau  located  at  Brussels.  The  council 
would  have  been  composed  of  the  diplomatic  representatives  of  the 
powers  accredited  to  Belgium.  The  bureau  would  have  been  the 
general  secretarial  office,  organized  and  controlled  by  the  council; 
the  whole  arrangement  being  similar  to  that  made  in  1899  by  the 
Convention  for  the  Pacific  Settlement  of  International  Disputes. 
The  council  would  have  had  powers  of  surveillance  and  conciliation. 
The  bureau,  under  the  regulations  of  the  council,  would  have  served 
as  a  depositary  of  national  and  international  documents  and  other  in- 
formative material,  as  the  common  medium  of  communication,  and 
as  the  record  office.  The  financial  support  of  the  commission  would 
have  been  assured  by  an  agreement  of  the  powers  regarding  the  share 
to  be  contributed  by  each.  Though  the  final  act  authorized  surveil- 
lance by  the  diplomatic  body  at  Brussels,  yet,  as  no  permanent  secre- 
tarial office  was  established  and  no  financial  support  arranged,  the 
execution  of  the  provisions  of  the  final  act  was  in  fact  left  to  the  dis- 
cretion of  the  States  concerned.    V 

(French  Yellow  Book,  Conference  Inteimationale  de  Bimxelles^ 
1891.    Protocoles  et  Act  Final,  pp.  245-278,  357,  388.) 

The  action  of  the  Brussels  African  conference  in  making  arrange- 
ments for  the  abolition  of  the  slave  trade  has  received  the  practically 
unanimous  assent  and  concurrence  of  all  civilized  States.  The  gen- 
eral abolition  of  slavery  as  a  social  institution  throughout  the  civil- 
ized world,  and  the  close  commercial  relations  of  the  nations,  have 
brought  about  the  extinction  of  the  slave  trade  on  the  sea  and  in  the 
civilized  parts  of  the  world. 

From  this  survey  of  national  and  international  action  in  modern 
times  it  w^ould  seem  that  enslavement  of  aboriginal  persons  can  not 
yet  be  said  to  be,  in  an  unqualified  sense,  contrary  to  the  law  of 
nations.  Domestic  slavery  of  such  persons,  under  conditions  assur- 
ing their  humane  treatment,  may,  it  would  seem,  be  tolerated  by  a 
State,  without  giving  other  States  a  right  to  claim,  under  the  law  of 
nations,  that  it  is  violating  its  duty  of  guardianship. 

Slavery  can  not  exist  without  some  trade  in  slaves,  but  undoubtedly 
"  the  slave  trade,"  in  the  technical  sense,  is  now  contrary  to  the  uni- 


100       THE   QUESTION   OF  ABORIGINES  IN   THE  LAW   OF   NATIONS. 

versa!,  or  common,  law  of  nations.  A  State  which  should  authorize 
its  citizens  to  engage  in  it  would,  it  would  seem,  clearly  violate  the 
law  of  nations.  A  State  which  should  even  tolerate  traffic  in  slaves, 
as  a  social  institution,  in  any  place  under  its  sovereignty,  would 
undoubtedly  at  the  present  time  subject  itself  to  international  repres- 
sive or  punitive  action,  unless  it  could  show,  in  its  own  defence, 
that  it  had  done,  and  was  doing,  everything  possible  to  abolish  the 
traffic. 

B.  LIMITS  SET  BY  THE  LAW  OF  NATIONS  TO  THE  EXERCISE  BY  A   CIVILIZED 
STATE  OF  ITS  AUTHORITY  AS  GUARDIAN  OF  ABORIGINES. 

The  analogy  of  uncivilized  persons  to  the  children  of  civilized 
persons,  or  to  incompetent  civilized  persons,  has  in  some  cases  been 
applied  with  such  literalness  in  colonies  of  civilized  States  that  the 
courts  having  jurisdiction  of  offenses  committed  by  aborigines  have 
been  authorized  by  law  to  impose  sentence  of  corporal  punishment 
or  of  forced  labor.  As  forced  labor  almost  of  necessity  implies  cor- 
poral compulsion  in  order  to  avoid  a  complete  lack  of  discipline,  the 
two  forms  of  punishment  seem  to  amount  to  the  same  thing. 

In  dealing  with  aborigines,  the  common  experience  of  civilized 
States  is  that  they  find  no  inner  compulsion  of  the  mind  urging  the 
aborigines  to  acquire  land  and  personal  property  as  a  means  of  pur- 
suing happiness,  by  exchanging  their  labor  for  land  and  commodi- 
ties. Modern  psychology  seeks  to  discover  and  apply  methods  for 
creating  in  the  aboriginal  mind  such  an  inner  compulsion ;  but  prac- 
tical men,  leading  the  harsh  life  of  colonists,  seek  results  by  more 
simple  methods,  and  demand  from  the  colonizing  States  the  utter- 
most privileges  of  a  parent  or  guardian  as  respects  the  aborigines — 
sometimes  for  their  own  gain,  sometimes  with  a  more  worthy  motive, 
sometimes  as  an  absolute  necessity  of  self -protection.  A  few  civi- 
lized persons  living  among  a  body  of  persons  who  are  strong  of  body 
and  will,  who  may  have  the  minds  of  children  and  the  morals  of  in- 
competents or  perverts,  who  may  be  ignorant  of  private  property  in 
land  or  things,  and  who  may  tend  to  commit  theft  by  reason  of  their 
habituation  to  the  tribal  communism,  whose  ideas  of  life  and  death 
are  often  confused  by  their  religious  practices,  must  perforce  act 
promptly,  and  if  need  be  harshly.  As  the  civilized  community  in^ 
creases  in  size  and  strength  it  arrives  at  a  point  where  it  can  study 
the  problem  as  one  of  psychology.  But  in  new  colonies  and  in  col- 
onies where  the  civilized  persons  are  few  as  compared  with  the 
aborigines,  a  civilized  State  may  find  that  its  duty  to  its  colonists 
compels  it  to  allow  the  local  government  and  courts  to  protect  them 
and  discipline  the  aborigines  by  imposing  punishments  upon  convicted 
aborigines  such  as  a  guardian  might  use  in  disciplining  a  child 


THE  QUESTION  OF  ABORIGINES  IN  THE  )Uv^(  Oif, NATIONS.       101 

who  was  an  incompetent  or  a  pervert.  Ths  di)t^^  of  tkQ,  civilized 
guardian  to  preserve  itself  and  its  authority  and  to  tram  the  minor 
incompetent  committed  to  its  charge,  may  justify  the  stretching  of 
the  parental  and  tutorial  power  to  the  utmost. 

Accordingly,  in  new  colonies  where  the  civilized  persons  are  few 
in  comparison  with  the  aborigines,  civilized  States  have  tolerated 
and  still  tolerate  the  sentencing  of  aborigines,  upon  conviction  of  a 
crime,  to  corporal  punishment  and  to  forced  labor;  generally,  how- 
ever, under  restrictions  intended  to  prevent  the  chastisement  or  phys- 
ical compulsion  from  working  a  permanent  bodily  injury  or  a  per- 
manent impairment  of  health. 

Thus  by  the  native  code  of  Natal,  enacted  by  the  governor  and 
council  in  1891,  it  was  provided  as  follows  (sec.  76)  : 

Kraal  heads  may  inflict  corporal  punishment  upon  the  inmates  of  their  kraals 
for  the  purpose  of  correction  and  to  maintain  peace  and  for  any  other  just 
cause.     (Statutes  of  Natal  1845-1899,  vol.  2,  law  19, 1891.) 

In  1896  the  Colonial  Legislature  enacted  an  amendment  to  the 
native  code  providing  (sees.  14  and  15)  thus: 

Every  contravention  of  this  act  or  of  the  law  No.  19,  1891  [the  native  code], 
or  of  any  act  amending  the  same,  or  of  any  rules  and  regulations  made  there- 
under, shall  be  cognizable  and  may  be  tried  in  the  court  of  the  administrator  of 
native  law  of  the  division  in  Avhich  the  offense  occurred  or  in  which  the  accused 
may  be  found. 

Disobedience  or  disregard  by  any  native  of  any  duty,  obligation,  or  prohibi- 
tion imposed  on  him  by  law  No.  19,  1891,  or  any  of  the  sections  of  the  schedule 
thereto,  shall  be  deemed  an  offense.     (/&.,  act  No.  40,  1896.) 

In  1897  the  Colonial  Legislature  amended  the  native  code  and  the 
law  of  1896  as  follows: 

Any  person  who  shall  contravene  any  of  the  provisions  of  the  law  No.  19, 
1891,  or  of  any  act  amending  the  same,  or  of  any  rule  or  order  made  thereunder, 
for  which  a  special  penalty  has  not  been  provided,  shall,  ifpon  conviction  in  the 
court  of  an  administrator  of  native  law,  be  liable  to  a  fine  not  exceeding  10 
pounds  sterling,  or  to  be  imprisoned  with  or  without  hard  labor  for  any  term 
not  exceeding  6  months  or  to  a  whipping  not  exceeding  15  lashes.  In  the  dis- 
cretion of  the  court,  imprisonment  and  whipping  may  be  joined  and  form  a 
part  of  the  same  sentence  or  any  one  of  the  said  classes  of  punishment  may  be 
awarded  alone,  or  imprisonment  may  be  awarded  with  a  fine  as  an  alternative 
punishment  or  by  way  of  default  in  the  payment  of  any  fine :  Provided,  hoivever. 
That  no  woman  shall  be  sentenced  to  be  whipped.     (/&.,  act  No.  8,  1897.) 

In  the  Belgian  colony  of  the  Congo  the  sentence  of  whipping  as  a 
penalty  upon  conviction  of  certain  offences  by  the  native  tribunals, 
or  by  the  European  administrative  tribunals  acting  in  their  stead, 
is  apparently  authorized  by  law.  The  jurisdiction  of  these  courts  to 
impose  this  penalty  seems  to  date  from  an  old  ordinance  which  was 
kept  alive  by  the  organic  act  for  the  government  of  the  Belgian 
Congo  of  October  18,  1908.  {Recueil  TJsuel  de  la  Legislation  de 
VEtat  Independant  du  Congo^  vol.  6,  p.  6;  p.  565,  sec.  36.) 


102       TH'fi'  QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 


'//  V 


A  proVisfoh'''of  law  autliorizing  the  imposition  of  the  penalty  of 
whipping  occurs  in  a  royal  decree  of  May  2, 1910,  made  on  the  advice 
and  with  the  approval  of  the  Belgian  colonial  council,  regarding  the 
government  of  the  administrative  districts  under  the  charge  of  the 
native  chiefs.  By  this  law  the  chief  or  the  European  administrators 
inay  inflict  the  penalty  of  flogging  as  a  punishment  of  natives  other 
than  the  old,  the  infirm,  the  women,  and  the  children,  on  conviction 
of  certain  offences,  and  the  punishment  "is  to  be  applied  in  the 
manner  provided  by  the  general  regulations  of  the  colony."  {Recueil 
Usuel  de  la  Legislation  de  VEtat  Indepeiidant  du  Congo^  vol.  7,  pp. 
179-190.) 

An  explanatory  statement  of  the  colonial  council  regarding  the 
law  of  1910  is  published  in  connection  with  the  law.  (See  also  the 
publication  above  cited,  vol.  3,  pp.  202,  204,  289,  356;  also  vol.  6, 
p.  733;  vol.  7,  p.  114.) 

In  the  decree  concerning  the  reorganization  of  justice  in  the 
French  Congo  of  March  17,  1903,  sec.  14,  it  is  provided  as  follows : 

In  the  localities  situated  outside  the  limits  specified  in  the  preceding  article, 
crimes  committed  by  the  natives  to  the  prejudice  of  other  natives  shall  continue 
to  be  judged  by  the  administrators  until  native  tribunals  are  organized.  It  is, 
nevertheless,  forbidden  to  them  to  pronounce  sentence  of  corporal  chastisement. 
In  cases  in  which  these  penalties  are  provided  there  shall  be  substituted  cor- 
rectional imprisonment  or  fine.  {Journal  du  Palais,  Lois  Annot6es,  1901-1905, 
p.  678.) 

In  Madagascar,  by  the  act  of  May  9,  1909,  enacted  by  the  French 
Government  regulating  administration  of  the  native  courts,  the 
sentence  of  "  forced  labor "  was  authorized.  {Journal  du  Palais^ 
Lois  Annotees,  1906-1910,  p.  989.) 

By  the  penal  code  of  France  (ch.  1,  sees.  15  and  16)  it  is  provided 
IS  follows : 

Men  condemned  to  forced  labor  will  be  employed  upon  the  most  severe 
(p^nible)  labor;  they  will  wear  on  their  feet  a  metal  ball  (boulet)  ;  or  will  be 
fastened  together  by  twos,  when  the  labor  at  which  they  shall  be  employed 
will  permit.  Women  and  girls  condemned  to  forced  labor  shall  be  employed 
only  within  a  house  of  compulsion  {maison  de  force).  {Codes  et  Lois  pour  la 
France,  VAlg^rie  et  les  Colonies,  6th  ed.,  Paris,  1912;  Code  Penal,  p.  4.) 

In  the  Netherlands  colony  of  Surinam,  by  a  law  enacted  in  1863 
and  in  force  in  1895,  the  commissary  of  an  administrative  district 
was  authorized  to  impose  a  penalty  of  from  three  days  to  three 
months  of  forced  labor,  with  or  without  chains,  on  persons  brought 
into  the  colony  under  contract  in  case  of  violation  of  the  contract  by 
rebellion,  drunkenness,  laziness,  refusal  to  go  to  the  hospital  when 
sick,  refusal  to  obey  sanitar}^  regulations,  or  leaving  the  place  of 
employment  without  a  passport.  By  an  ordinance  of  the  Government 
of  the  Netherlands  made  in  1895  for  Surinam,  a  failure  by  any  immi- 
grant or  native  laborer  to  keep  a  clearing  around  his  habitation  was 


THE  CiUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       103 

made  punishable  by  a  fine  and  by  imprisonment,  with  or  without 
forced  labor,  for  from  1  to  15  days.  {La  Mam-Oeuvre  aux  Colonies^ 
published  by  the  Institut  Colonial  International^  1895,  vol.  3,  p.  485, 
note;  pp.  771-7T3.) 

Corporal  punishment  of  aborigines  is  permitted  in  Rhodesia  on 
conviction  of  certain  offenses,  the  maximum  penalty  being  15  strokes 
or  the  rod  {verge).  {Les  Lois  et  V Administration  de  la  Rhodesie^  by 
Henri  Rolin,  1913,  p.  130.) 

In  Uganda  the  district  magistrates  may  sentence  aborigines  to  the 
penalty  of  whipping  for  a  list  of  specified  offenses,  men  over  45  and 
women  being  excepted,  the  whipping  of  men  being  with  a  "  kiboko  " 
not  less  than  half  an  inch  in  diameter,  and  of  boys  under  16  with  a 
"  birch  rod  made  of  light  twigs."  (Laws  of  the  Uganda  Protectorate 
in  force  on  Dec.  31, 1909,  pp.  122-126.) 

For  the  German  colonies  of  Togoland,  Kamerun,  and  southeast 
Africa,  an  ordinance  was  enacted  by  the  German  Government,  on 
April  22,  1896,  permitting  the  local  courts  to  impose  a  sentence  of 
whipping  or  flogging  on  the  conviction  of  aborigines  of  certain 
named  offenses;  women,  children,  Arabs,  and  Indians  being  ex- 
cepted. The  kind  of  whip  or  rod  to  be  used  was  specified,  a  maximum 
of  strokes  prescribed,  and  a  provision  was  inserted  that  a  physician 
should  be  present  when  the  punishment  should  be  inflicted,  or,  if 
that  were  impossible,  a  European,  and  that  a  record  of  all  such  pun- 
ishments should  be  kept,  and  a  copy  transmitted  to  the  German  Gov- 
ernment. This  ordinance  was  put  in  effect  in  German  Southwest 
Africa  on  November  8,  1896,  natives  of  the  better  class  being  also 
excepted  from  its  operation.  {Deutsche  Kolonial  Gesetzgehung^  vol. 
2,  pp.  215,  294.) 

A  general  ordinance  applicable  to  all  German  colonies  was  pro- 
mulgated on  February  27,  1896,  by  the  Imperial  Chancellor,  forbid- 
ding the  use  of  processes  to  extract  confessions  or  declarations  in 
judicial  proceedings  to  which  aborigines  were  parties,  other  than 
those  permissible  under  the  German  statute  relating  to  judicial  pro- 
cedure in  Germany  itself.  By  this  ordinance  the  imposition  in  such 
judicial  proceedings  of  unusual  penalties  was  prohibited,  and  there 
was  a  special  inhibition  against  verdachtstrafen — penalties  imposed 
by  courts  upon  suspicion  or  without  full  proof  of  the  guilt  of  the 
accused.     {Deutsche  Kolonial  G esetzg ehung ^  vol.  2,  pp.  213,  214.) 

By  the  German  imperial  statute  of  July  25,  1900  {Reichsgesetz- 
hlatt.,  1900,  No.  40),  it  was  enacted  that  the  aborigines  of  the  Ger- 
man colonies  should  be  subject  to  the  jurisdiction  of  the  courts  pro- 
vided for  Europeans  "  only  in  so  far  as  this  is  decreed  by  ordinance 
of  the  Emperor,"  and  that  "  the  aborigines  may,  by  special  ordinances 
of  the  Emperor,  be  placed  on  an  equality  with  the  other  parts  of  the 
population."    {Deutsche  Kolonial  Gesetzgehung^  vol.  5,  pp.  132, 143.) 


104       THE   QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

By  a  circular  letter  of  January  12,  1900,  addressed  to  the  colonies 
by  the  colonial  division  of  the  foreign  office,  concerning  the  final 
judgments  against  aborigines,  a  protest  was  made  against  their  num- 
ber and  severity.  It  was  insisted  that  the  aborigines  could  be 
brought  to  know  the  advantages  of  the  life  of  labor  and  of  civiliza- 
tion by  measures  of  persuasion  and  education,  rather  than  by  bodily 
punishment.  It  was  also  stated  that  the  opinion  in  the  Reichstag  and 
among  the  public  was,  that  such  proceedings  were  giving  a  bad  repu- 
tation to  the  German  work  of  colonization.  The  governors  of  col- 
onies were  urged  to  see  that  the  laws  were  obeyed,  and  that  only 
proper  bodily  punishment  was  inflicted.  {Deutsche  Kolonial  Gesetz- 
gehung^  vol.  5,  p.  15.    See  also  vol.  6,  p.  233.) 

The  German  colonial  oiRce,  on  July  12, 1907,  through  Dr.  Dernburg 
as  colonial  secretary,  sent  a  letter  to  all  the  governors  of  colonies 
saying  that  public  opinion  in  Germany  was  stirred  up  by  the  cruel 
use  of  corporal  punishment  in  the  colonies,  and  asking  for  opinions 
how  to  establish  a  better  system,  in  which  bodily  punishment  should 
be  reserved  for  a  few  kinds  of  specially  heinous  offences.  (/&.,  vol. 
11,  p.  323.) 

The  same  request  was  repeated  in  1909,  and  the  governors  were 
urged  to  see  that  the  purpose  of  the  Government  in  restricting 
corporal  punishment  to  certain  heinous  offences  was  carried  out. 
(/&.,  vol.  13,  p.  59.) 

Under  Japanese  administration  in  Formosa,  corporal  chastisement 
as  a  penalty  for  violation  of  police  regulations  is  authorized,  as  ap- 
plied to  Formosan  and  Chinese  men  over  16  and  under  60  years  of 
age,  who  have  no  residence  in  the  island  and  are  without  means  of 
subsistence. 

(Japanese  Rule  in  Formosa,  by  Yosaburo  Takikoshi,  tr.  by  George 
Braithwaite,  1907,  p.  194.) 

M.  Henri  Rolin,  in  his  book  on  The  Law  of  Uganda  {Le  Droit  de 
VTJganda)^  published  in  1910,  speaking  of  corporal  punishment  of 
aborigines  of  the  more  primitive  type  as  a  part  of  the  system  of 
administration  adopted  by  civilized  States  as  respects  their  tropical 
colonies,  says  (pp.  16-18)  : 

The  colonies  of  tropical  Africa  are  the  political  creations  of  modern  European 
States — that  is  to  say,  of  some  of  the  most  highly  civilized  States  of  our 
time — in  one  of  the  most  backward  regions  of  the  globe.  It  is  therefore  not 
to  be  wondered  at  that  these  colonies,  and  especially  their  legislation,  call  to 
mind  in  some  respects  certain  epochs  of  history  and  certain  stages  of  the  evolu- 
tion of  law  which  we  are  wont  to  speak  of  as  "  primitive  " ;  nor  that,  on  the 
other  hand,  these  colonies  and  their  legislation  reflect  some  of  the  most  modern 
and  progressive  tendencies.  Such  is,  in  fact,  the  character  of  these  recent 
acquisitions  made  by  Europe.  They  are  adaptations  of  civilization  to  barbarous 
regions. 

In  the  colonies  of  tropical  Africa,  as  at  certain  "  primitive  "  epochs  of  political 
and  juridical  evolution,  the  organization  of  the  public  powers  tends  to  take 


THE  QUESTION   OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       105 

tlie  form  of  absolutism  rather  than  of  democracy.  The  military  element  plays 
a  preponderant  part,  which,  ho^yever,  diminishes  rapidly  in  importance  after 
a  few  years.  The  accumulation  of  functions  in  one  or  a  few  persons  is  fre- 
quent. The  maintenance  of  the  aboriginal  political  organs  giyes  rise  to  a  su- 
perposition of  authorities  which  calls  to  mind  more  or  less  the  feudal  system. 
From  the  point  of  view  of  the  finances,  the  revenue  from  the  public  lands  and 
trade  monopolies,  as  well  as  the  revenue  from  imposts,  have  an  importance 
relatively  much  greater  than  in  Europe  at  the  present  time.  Imposts  are  paid 
often  in  the  produce  of  the  soil  or  in  labor.  The  tenure  of  the  land  is  in  large 
part  collective.  The  system  of  liberty  of  contract  is  less  developed,  especially 
as  respects  manual  labor,  due  to  the  persistence  of  slavery  and  the  evils  which 
ramify  from  it.  On  the  other  hand,  the  rules  of  penal  law  are  numerous,  and 
corporal  punishment  as  a  penalty  for  crime,  as  well  as  collective  punishment 
of  aboriginal  communities,  are  applied.  There  are  in  this  situation  certain 
undeniable  analogies  between  the  systems  of  law  applied  in  the  colonies  of 
tropical  Africa  and  the  institutions  of  western  Europe  in  the  first  centuries  of 
the  Middle  Ages. 

On  the  other  hand,  the  colonial  powers,  yielding  to  the  assimilative  tendency 
which  colonizing  States  art  never  able  completely  to  resist,  have  introduced 
into  the  law  of  the  middle  African  territories  certain  ideas  essentially  mod- 
ern— that  of  commercial  freedom  guaranteed  by  the  Berlin  African  act  of  1885 ; 
that  of  the  freedom  of  labor,  opposed  to  the  institution  of  slavery  and  the 
corvee;  that  of  religious  freedom  guaranteed  by  the  Berlin  African  act;  and 
that  of  the  duty  of  assuring  the  moral  and  material  well-being  of  the  aborig- 
ines, guaranteed  by  the  same  act.  There  exists  also  a  tendency  to  put  into 
effect  the  principle  of  the  separation  of  powers,  and  that  of  the  individuality 
of  the  penalty  of  crime ;  to  proscribe  corporal  chastisements  of  a  severe  char- 
acter ;  and  to  favor  the  development  of  the  institution  of  private  property. 
The  enormous  extension  of  the  part  taken  by  the  colonizing  State  in  the  in- 
ternal management  of  these  tropical  colonies  is  also  a  very  modern  feature. 

The  question  underlying  the  rightfulness  of  corporal  chastisement 
of  aborigines  as  a  penalty  inflicted  by  courts  for  commission  of 
offences  by  them,  evidently  is,  how  far  a  civilized  State  may  go  in  re- 
stricting the  fundamental  rights  of  uncivilized  persons  to  life  and 
liberty  by  punishing  them  as  being  in  a  sense  adult  children.  All 
needful  restrictions  are,  it  seems,  legal;  though  a  State  cannot  by 
law  require  cruel  and  inhuman  punishment  to  be  imposed,  or  per- 
sistently tolerate  a  cruel  and  inhuman  administration  of  its  law.  On 
the  general  subject  of  the  necessary  limitation  of  the  civil,  as  well  as 
political,  rights  of  aborigines,  due  to  the  undeveloped  and  undis- 
ciplined character  of  their  minds,  the  Suf^reme  Court  of  the  United 
States  has  fully  expressed  itself.  {Ex  farte  Crow  Dog,  109  U.  S., 
556,  decided  in  1883.)  In  that  case  the  facts  were  that  Congress 
had,  by  an  act  reciting  an  agreement  with  a  tribe  of  Indians,  ratified 
an  agreement  with  them  stipulating  the  boundaries  of  their  reserva- 
tion, and  providing  for  a  degree  of  self-government  subject  to  cer- 
tain restrictions.  One  of  the  provisions  was  that  "  Congress  shall,  by 
appropriate  legislation,  secure  to  them  an  orderly  government ;  they 
shall  bo  subject  to  the  laws  of  the  United  States,  and  each  individual 


106       THE   QUESTIOl^   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

shall  be  protected  in  his  rights  of  property,  person,  and  life."    Of 
this  provision  the  court  said : 

The  pledge  to  secure  to  these  people,  with  whom  the  Uoited  States  were  con- 
tracting as  a  distinct  political  body,  an  orderly  government  by  appropriate 
legislation,  necessarily  implies,  having  regard  to  all  the  circumstances  attending 
the  transaction,  that  among  the  arts  of  civilized  life,  which  it  was  the  very 
purpose  of  all  these  arrangements  to  introduce  and  naturalize  among  them,  was 
the  highest  and  best  of  all,  that  of  self-government,  the  regulation  by  them- 
selves of  their  own  domestic  affairs,  the  maintenance  of  order  and  peace  among 
their  own  members  by  the  administration  of  their  own  laws  and  customs. 
They  were  nevertheless  to  be  subject  to  the  laws  of  the  United  States,  not  in 
the  sense  of  citizens,  but,  as  they  had  always  been,  as  wards  subject  to  a 
guardian ;  not  as  individuals  constituted  members  of  the  political  community 
of  the  United  States,  with  a  voice  in  the  selection  of  representatives  and  the 
framing  of  the  laws,  but  as  a  dependent  community  who  were  in  a  state  of 
pupilage,  advancing  from  the  condition  of  a  savage  tribe  to  that  of  a  people 
who,  through  the  discipline  of  labor  and  by  education,  it  was  hoped  might 
become  a  self-supporting  and  self-governing  society. 

It  is  thus  evident  that  civilized  States  are  inclined  to  allow  to  them- 
selves and  to  each  other  a  wide  discretion  in  determining  what  restric- 
tions upon  the  liberty  of  their  aboriginal  wards  are  needful  in  any 
given  situation.  Nevertheless  the  general  appreciation  of  the  fact 
that  civilization  advances  only  by  correction  of  the  mind  is  having 
its  effect.  All  civilized  States  have  placed  slavery  in  all  its  forms — 
political,  social  and  economic — ^more  or  less  under  their  ban.  The 
attitude  of  those  which  permit  corporal  punishment  is  apologetic, 
and  justification  is  sought  in  some  exceptional  need  of  coercion  in 
the  particular  case.  The  development  of  the  law  of  nations  in  this 
respect  would  seem  to  be  in  the  direction  of  the  recognition  of  the 
tutorial  duty  of  civilized  States  towards  the  aborigines  under  their 
sovereignty  as  imperative  and  unalienable, — as  inevitably  involved 
in  the  personal  relationship  of  guardianship, — and  the  restriction  of 
the  personal  liberty  of  aborigines  only  to  the  extent  needful  to  enable 
the  State  to  effect  the  necessary  mental  correction. 


CHAPTER  VIII. 

THE  DUTIES  OF  CIVILIZED  STATES  AS  GUARDIANS  OF  ABORIGINES. 

In  the  declarations  of  international  conferences  dealing  with  the 
relations  between  civilized  States  and  aborigines  under  their 
sovereignty,  the  duties  incident  to  this  guardianship  have  not  been 
definitely  recognized  as  being  of  a  tutorial  character.  The  Berlin 
African  conference  indeed  declared  the  obligation  of  the  signatory 
powers  "  to  watch  over  the  perservation  of  the  native  tribes,  and  to 
care  for  the  conditions  of  their  moral  and  material  well-being,  and 
to  help  in  abolishing  slavery,  and  especially  the  slave  trade."  As 
respects  the  positive  duty  of  the  State  to  undertake  directly  the  edu- 
cation and  training  of  the  aborigines  in  the  arts  and  sciences  of 
civilization  and  in  the  political  principles  on  which  all  civilized 
society  is  based,  the  declaration  is  indefinite.  It  seems  to  have  been 
contemplated  that  the  education  of  the  aborigines  would  be  effected 
principally  by  religious  and  charitable  associations  of  a  private 
character.    The  provision, on  this  subject  is  as  follows: 

[The  signatory  powers]  shall,  without  distinction  of  creed  or  nation,  protect 
and  favor  all  religious,  scientific,  or  charitable  institutions  and  enterprises  cre- 
ated and  organized  for  the  above  ends,  or  designed  to  instruct  the  natives,  and 
to  bring  home  to  them  the  blessings  of  civilization.  Christian  missionaries,  sci- 
entists, and  explorers  with  their  escorts,  property,  and  collections  shall  likewise 
receive  special  protection. 

Freedom  of  conscience  and  religious  toleration  are  expressly  guaranteed  to  the 
natives  as  well  as  subjects  and  foreigners.  The  free  and  public  exercise  of  all 
forms  of  divine  worship  and  the  right  to  build  edifices  for  religious  purposes 
and  to  organize  religious  missions  belonging  to  all  creeds  shall  not  be  limited  or 
fettered  in  any  way  whatsoever. 

The  Brussels  African  conference  declared  that  those  in  charge  of 
the  fortified  stations  to  be  established  in  Africa  should  have  the  fol- 
lowing "subsidiary  duties"  (Art.  II)  : 

*  *  *  To  initiate  [the  native  populations]  in  agricultural  labor  and  in  the 
industrial  arts  so  as  to  increase  their  welfare;  to  raise  them  to  civilization 
and  bring  about  the  extinction  of  barbarous  customs,  such  as  cannibalism  and 
human  sacrifices. 

The  interest  of  all  civilized  States  in  colonizing  enterprises  was 
stimulated  by  the  entry  of  the  United  States  into  the  civilized  world 
as  a  colonizing  power.    The  general  sentiment  of  the  American  people, 

107 


108        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF   NATIONS. 

voiced  by  its  statesmen,  was  that  domination  of  distant  communities 
by  a  Kepublic  was  permissible  when  needful  and  to  the  extent  need- 
ful, but  only  provided  the  State  recognized  and  fulfilled  the  posi- 
tive and  imperative  duty  of  helping  these  dominated  communities 
to  help  themselves  by  teaching  and  training  them  for  civilization,  as 
the  wards  and  pupils  of  the  nation  and  of  the  society  of  nations. 
Democracy  and  republicanism  were  not  to  be  promulgated,  the  Ameri- 
can people  held,  by  destroying  those  who  were  ignorant  of  these  prin- 
ciples or  who  disbelieved  in  them,  but  by  the  positive,  helpful,  propa- 
gandist Avork  of  repiiblics  in  converting  to  these  principles  the  non- 
democratic  and  nonrepublican  part  of  the  world  with  which  they  were 
politically  connected. 

It  is  acknowledged  by  European  writers  that  the  year  1898  marks 
the  beginning  of  a  new  epoch  in  the  art  and  science  of  colonization, 
in  which  civilized  States  have  recognized  more  and  more  definitely 
that  guardianship  of  aboriginal  tribes  implies  not  merely  protection, 
not  merely  a  benevolence  toward  private  missionary,  charitable,  and 
educational  effort,  but  a  positive  duty  of  direct  legislative,  executive, 
and  judicial  domination  of  aborigines  as  minor  wards  of  the  nation 
and  of  equally  direct  legislative,  executive,  and  judicial  tutorship  of 
them  for  civilization,  so  that  they  may  become  in  the  shortest  possible 
time  civil  and  political  adults  participating  on  an  ^equality  in  their 
own  government  under  democratic  and  republican  institutions. 

The  most  humane  and  advanced*  European  colonial  administrators 
and  students  of  colonial  science  realized  this  development  of  public 
sentiment,  and  in  order  to  lay  a  basis  for  the  future  establishment  of 
these  humane  principles  in  law  of  nations,  proposed  the  assembling 
of  an  international  conference  in  Paris  in  1900  in  connection 
with  the  International  Exposition,  for  the  discussion  of  the  duties 
of  civilized  States  to  aboriginal  peoples  under  their  sovereignty. 
The  European  Governments  were  agreeable  to  the  plan,  but  evidently 
on  account  of  the  delicacy  of  the  questions  to  be  discussed  the  confer- 
ence was  given  a  wholly  scientific  character  and  was  called  an  "  inter- 
national congress  of  colonial  sociology."  It  was  attended  by  delegates 
from  the  different  nations,  who  were  experts  in  colonial  science  or  in 
colonial  administration.  It  was  under  the  patronage  and  direction  of 
the  French  Government.  Its  conclusions  were  in  the  form  of  state- 
ments of  opinion  concerning  what  the  principles  of  the  law  of 
nations  ought  to  be,  without  attempting  to  determine  what  principles 
were  actually  accepted  and  applied,  or  to  pass  any  judgment  on  exist- 
ing principles  or  on  the  action  of  any  nation.  The  action  of  the  con- 
gress, therefore,  is  valuable  only  as  suggestive  of  the  development  of 
the  law  of  nations  in  the  future  and  throws  no  light  upon  the  actual 
principles  recognized  and  applied.     Considering  the  character  of 


THE  QUESTION  OF  ABORIGINES  IN   THE  LAW  OF  NATIONS.       109 

this  congress,  however,  it  seems  desirable  to  present  its  program  and 
resolutions,  as  shown  by  the  printed  proceedings. 

M.  Leseur,  the  secretary  general  of  the  congress,  in  announcing  the 
program  to  be  followed  by  the  congress,  said  (Proceedings,  pp.  4-6, 
12):  ^ 

The  object  of  the  congress  is  the  study  of  the  moral  and  social  questions 
growing  out  of  colonization  *  *  *.  It  is  necessary  not  to  forget  that  the 
congress  *  *  *  is  an  international  congress;  that  it  has  for  its  purpose 
the  bringing  about  of  an  exchange  of  views  which  shall,  as  it  were,  serve  as 
a  body  of  directions  destined  to  guide,  not  one  particular  power,  but  rather 
all  the  powers  which  have  seen  fit  to  give  to  their  development  the  form  of 
colonial  expansion.  Certainly  if  there  be  one  problem  which  can  be  said  to 
be  essentially  international,  it  is  that  of  the  condition  of  aboriginal  peoples. 
It  is  such  not  only  by  the  circumstances  under  which  it  presents  itself,  but 
also  by  certain  manifestations  to  which  it  has  given  occasion.  It  will  suffice 
that  I  recall  to  your  attention  those  somewhat  peculiar  statements  of  a  docu- 
ment international  in  its  nature,^  the  Berlin  African  Act  of  1885 ;  the  avowal 
of  the  preamble  that  the  powers  have  concerned  themselves  in  considering 
"  the  means  of  increasing  the  moral  and  material  well-being  of  the  aboriginal 
peoples;  "and  the  engagement  assumed  by  the  powers  in  Article  VI  to  watch 
over  "  the  conservation  of  the  aboriginal  peoples  and  the  amelioration  of  their 
moral  and  material  conditions  of  existence."  These  are  significant  evidences, 
and  in  spite  of  the  cpntradiction  which  certain  established  facts  give  to  these 
avowals,  they  have  nevertheless,  from  the  point  of  view  of  the  moral  history 
of  colonization,  a  considerable  value.  They  amount  to  a  condemnation  of 
that  policy  of  destruction  and  enslavement  which  for  centuries  has  been  the 
policy  followed  by  the  colonizing  peoples  as  regards  the  natives  of  their 
colonies.  They  imply  the  avowal  of  the  opinion  that,  though  of  a  civilization 
more  or  less  retarded,  these  aboriginal  peoples  are  not  on  this  account  outside 
the  domain  of  law,  and  that  as  for  the  colonizing  powers,  it  is  only  by  a  just 
sentiment  toward  the  inferior  races  and  an  exact  observation  of  duties  toward 
them  that  they  can  justify  to  themselves  those  facts  of  brutal  conquest  which 
are  almost  always  the  beginnings  of  colonial  enterprises. 

The  general  subject  of  the  conference  will  be :  The  duties  which  colonial  ex- 
pansion imposes  upon  the  colonizing  powers,  in  colonies  properly  so  called,  as 
regards  aboriginal  peoples. 

The  program  [will  be]  as  follows: 

I.  The  political  condition  of  aborigines.  To  what  extent  and  under  what  con- 
ditions is  it  desirable  to  maintain  the  aboriginal  administrative  organisms? 
How  and  by  what  means  may  an  aboriginal  population  be  put  in  a  position 
to  defend  its  rights  and  to  secure  redress  of  its  grievances  at  the  hands  of  the 
local  authorities? 

II.  The  juridical  condition  of  aborigines.  The  conditions  of  aboriginal  popu- 
lation from  the  point  of  view  of  civil  and  criminal  legislation  and  the  distribu- 
tion of  justice.  Respect  for  the  property  of  the  aborigines  and  the  means  of 
harmonizing  this  respect  with  the  needs  of  colonization. 

III.  The  moral  condition  of  aborigines.  Means  to  which  it  is  proper  to  have 
recourse  to  raise  their  intellectual  and  moral  standards. 

IV.  The  material  condition  of  aborigines.  Measures  proper  to  be  taken  to 
assure  the  conservation  of  the  race,  to  prevent  its  physical  degeneration,  and 
to  ameliorate  its  conditions  of  existence. 


110       THE  QUESTION   OF   ABORIGINES  IN   THE   LAW   OF   NATIONS. 

The  congress  adopted  resolutions  upon  all  these  points,  which  were- 
as  follows  (Proceedings,  pp.  442-452)  : 

The  political  and  juridical  condition  of  aborigines. 

I.  To  what  extent  and  under  what  conditions  is  it  desirable  to  maintain  the 
aboriginal  administrative  organisms? 

Opinions  adopted  by  the  congress:  ' 

The  congress — 

Considering  that  the  well-being  of  aborigines,  their  physical,  intellectual,  and 
moral  development  ought  to  be  the  supreme  end  of  all  colonial  policy ; 

Considering  that  the  evolution  of  aboriginal  societies  can  of  necessity  take 
place  only  gradually,  being  itself  only  the  consequence  of  economic  transforma- 
tions which  determine  the  degree  of  civilization  of  a  people ; 

Convinced  that  the  only  rational  method  is  that  which  consists  in  adapting, 
as  much  as  possible,  the  colonial  regime  to  the  existing  institutions,  laws,  and 
customs  of  the  aboriginal  races,  ameliorating  them  so  as  to  do  away  with  their 
injustices  and  adapting  them  to  new  needs  when  such  needs  make  themselves 
felt; 

Announces  as  its  opinion — 

That  colonial  policy  should  tend,  in  principle,  toward  the  maintenance  of 
the  aboriginal  administrative  organisms. 

II.  How  and  by  what  means  may  the  aboriginal  population  be  put  in  a 
position  to  defend  its  rights  and  to  secure  redress  of  its  grievances  at  the 
hands  of  the  local  authorities? 

Opinion  adopted  by  the  congress: 

The  congress — 

Considering  that  good  government  of  aborigines  is  impossible  unless  they 
have  the  means  of  making  known  their  needs  to  the  local  authorities; 

Considering,  on  the  other  hand,  that  it  is  important  to  the  security  of  the 
colonies,  and  therefore  to  their  prosperity,  that  the  aboriginal  populations 
should  find  in  the  peaceful  operation  of  regular  institutions  the  means  of  mak- 
ing known  their  grievances,  whether  arising  from  the  local  administrative 
measures  or  from  legislative  measures  of  the  metropole  by  which  they  are 
affected ; 

Is  of  the  opinion — 

That  the  colonizing  powers  ought  to  give  attention  to  the  matter  of  provid- 
ing their  aboriginal  subjects  with  the  means  of  defending  their  rights  and  of 
securing  redress  of  their  grievances  at  the  hands  of  the  local  authorities ; 

Among  these  means,  which  ought  to  be  appropriate  to  the  degree  of  civiliza- 
tion of  the  aboriginal  population,  the  congress  recommends  the  free  exercise 
of  the  right  of  petition ;  this  right  being  subjected  to  the  minimum  of  formali- 
ties and  expenses,  in  order  that  the  ignorant  and  the  very  poor  may  be  able 
to  profit  by  it  without  difllculty. 

While  recognizing  that  the  grant  of  representative  institutions  may  be  con- 
sidered as  the  surest  means  of  putting  aboriginal  populations  in  a  position  to 
defend  their  rights,  and  to  obtain  redress  of  their  grievances  at  the  hands  of 
the  local  authorities,  the  congress  considers  that  the  regime  of  representative 
institutions  is  one  which  presupposes  the  concurrence  of  moral,  intellectual, 
and  political  conditions  which  can  be  conceived  of  as  realizable  by  aboriginal 
peoples  only  in  a  future  more  or  less  distant;  and  that,  in  view  of  the  actual 
condition  of  the  greater  part  of  the  aboriginal  populations,  the  solution  is  to 
be  sought  according  to  circumstances,  either  in  admitting  the  chief  men  of  the 
aborigines  as  members  adjunct  of  the  councils  connected  with  the  local  gov- 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       IH 

ernments  (the  executive  council,  the  council  of  administration,  the  privy  coun- 
cil), or,  preferably  in  the  creation  of  aboriginal  assembles  invested  with  purely 
consultative  powers.  The  composition  and  powers  of  these  assemblies  should 
vary  with  the  local  conditions.  It  is,  however,  desirable,  if  the  local  circum- 
stances permit,  that  these  assemblies  should  be  composed,  in  part  at  least,  of 
elected  members,  the  suffrage  being  restricted  or  of  several  grades. 

In  the  colonies  where  the  local  conditions  do  not  lend  themselves  to  the  estab- 
lishment of  such  assemblies,  it  is  to  be  desired  that  a  person  delegated  by  the 
governor  should  be  constituted  the  protector  of  the  aborigines,  and  should  be 
charged  with  the  duty  of  receiving  their  complaints.  • 

III.  Condition  of  aborigines  from  the  point  of  view  of  civil  and  criminal  legis- 
lation and  the  distribution  of  justice. 

Opinions  adopted  by  the  congress : 

A.    CIVIL    LAW. 

1.  Inasmuch  as  a  knowledge  of  the  juridical  institutions  of  the  aborigines  la 
a  matter  of  very  considerable  interest,  both  from  the  political  and  the  scientific 
standpoint,  it  is  to  be  desired  that  the  governments  should  initiate  and  encourage 
the  study  of  these  institutions  by  competent  men. 

2.  As  respects  the  organization  of  their  family  life,  and  the  use  of  their 
property,  it  is  desirable  to  leave  to  the  aborigines  the  benefit  of  their  own  cus- 
toms, so  far  as  these  customs  are  not  incompatible  with  the  respect  due  to 
human  life  and  liberty. 

3.  It  is  desirable  to  maintain  the  aboriginal  tribunals  for  the  purpose  of 
exercising  jurisdiction  over  the  civil  affairs  between  aborigines ;  a  surveillance, 
more  or  less  strict  according  to  circumstances,  being  exercised  over  those 
tribunals  and  a  right  of  appeal  being  given  before  a  tribunal  of  metropolitan 
origin. 

Whenever  it  becomes  necessary  to  organize  new  tribunals  it  is  essential  to 
give  representation  to  the  aboriginal  element  of  the  population  on  these 
tribunals. 

4.  It  is  not  desirable  to  encourage  the  aborigines  to  solicit  individually  the 
benefit  of  European  juridical  institutions. 

5.  It  is  desirable  to  codify  the  civil  institutions  of  the  aborigines,  but  only 
on  the  condition  of  attributing  to  these  codes,  at  least  provisionally,  only  a 
value  purely  doctrinal.  These  codes  ought  to  translate  the  customary  law  of 
the  aborigines  without  altering  it. 

6.  By  way  of  exception  to  the  above,  as  respects  the  law  of  contracts  and 
the  commercial  law,  it  is,  on  the  contrary,  desirable  to  enact  for  the  aborigines 
a  code  resembling,  as  nearly  as  possible,  the  European  legislation  on  this  sub- 
ject,   with    some    reservations    of   which    the    principal    are    as    follows: 

(a)  The  contract  of  labor  ought  to  be  made  the  object  of  a  special  and, 
detailed  regulation  guaranteeing  the  liberty  of  the  aboriginal 
workers  and  assuring  them  equitable  treatment. 

(6)  The  system  of  evidence  ought  to  be  placed  in  harmony  with  the 
social  status  and  the  degree  of  instruction  of  the  aboriginal  popu- 
lation. 

(c)  It  may  be  necessary  to  enact  particular  rules  to  assure  the  execution 
of  obligations  undertaken  by  the  aborigines,  and  especially  to  au- 
thorize, as  regards  them,  execution  by  bodily  constraint. 

7.  Cases  arising  between  individuals  of  different  races  ought  to  be  adjudi- 
cated, not  by  the  European  tribunals,  but  by  mixed  tribunals  in  which  the- 
European  element  should  in  all  cases  be  represented. 


112       THE   QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

8.  When  the  authority  of  the  Europeans  has  been  once  established,  it  is  de- 
sirable to  commence  to  constitute  the  civil  status  of  the  aborigines  by  com- 
pelling them  to  declare  the  births  and  deaths  which  occur  among  them;  it 
being  understood  that  this  declaration  shall  not  modify  their  personal  status. 

B.    CRIMINAL   LAW. 

9.  The  enactment  of  a  penal  code  for  the  use  of  the  aborigines  is  a  duty 
which  exists  from  the  instant  that  the  colony  is.  founded.  This  code  ought  to 
be  translated  as  soon  as  possible  into  the  language  of  the  aborigines. 

10.  This  penal  code  for  the  aborigines  ought  not  to  be  merely  a  copy,  more 
or  less  modified,  of  the  European  penal  code,  though  it  ought  to  be  based  upon 
the  same  juridical  principles.  It  is  necessary  to  define  anew  each  infraction 
of  the  law,  and  to  determine  its  relative  gravity. 

An  act  forbidden  to  Europeans  may  be  permitted  to  aborigines,  and  vice  versa. 
The  gravity  of  an  infraction  of  the  law  may  vary  according  to  the  race  of  the 
author  or  of  that  of  the  victim. 

11.  The  duty  of  imposing  penalties  upon  aborigines  in  criminal  cases  ought 
to  be  confided  to  the  authorities  of  the  colonizing  power,  even  when  the  exer- 
cise of  the  right  of  jurisdiction  is  delegated  to  the  aboriginal  authorities. 

12.  It  is  desirable  to  establish,  in  order  to  impose  penalties  upon  aborigines  in 
criminal  cases,  a  judiciary  authority  distinct  from  the  administrative  authority. 

13.  It  is  permissible,  however,  to  confer  upon  an  administrative  officer  juris- 
diction to  repress  minor  crimes  conformably  to  the  law. 

14.  It  is  desirable  that  a  code  of  criminal  procedure  should  be  made  for  the 
use  of  the  aborigines.  While  giving  to  the  accused  the  necessary  guaranties, 
the  procedure  ought  to  be  established  with  sufficient  conditions  to  insure  rapid 
action,  so  that  the  punishment  may  follow  as  quickly  as  possible  upon  the  com- 
mission of  the  crime.  The  practice  of  subjecting  accused  persons  to  incessant 
quei-^tioning  and  torture  [la  question  et  les  epreuves]  ought  to  be  and  to  remaii^ 
rigorously  prohibited. 

15.  A  prison  regime  different  from  that  applied  to  Europeans  ought  to  be 
established  for  the  use  of  aborigines. 

THE  MATERIAL  CONDITION  OF  ABORIGINES. 

I.  Measures  necessary  to  assure  the  conservation  of  the  race,  to  prevent 
its  physical  degeneration,  and  to  ameliorate  its  conditions  of  existence. 
Opinions  adopted  by  the  congress : 

1.  It  being  evident  tfiat  the  prosperity  of  tropical  colonies  is  dependent  upon 
the  maintenance  and  development  of  the  aboriginal  population ; 

2.  The  congress  expresses  the  opinion  that  the  measures  taken  in  the  acts  of 
Brussels  of  1890  and  1899  to  restrain  the  traffic  in  spirituous  liquors  within  a 
zone  of  the  African  Continent,  ought  to  be  ^generalized,  and  that  it  is  desirable 
that  a  diplomatic  accord  should  be  made  for  the  purpose  of  extending  these 
provisions  to  all  colonies  where  there  is  an  aboriginal  population, 

2.  As  respects  those  colonies  which  have  local  representative  powers,  the  con- 
gress expresses  the  hope  that  the  metropolitan  governments  will  bring  to  the 
attention  of  the  local  governments  the  dangers  arising  from  the  consumption  of 
alcohol,  and  will  exercise  upon  them  a  moral  pressure  so  as  to  induce  them  to 
take  all  possible  measures  having  for  their  object  the  reduction  of  the  local 
consumption  of  alcohol. 

3.  It  is  desirable  that  measures  should  be  taken  to  prevent  or  restrict  the 
consumption  of  opium. 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       113 

4.  It  is  desirable  that  the  colonizing  powers,  each  as  regards  that  which 
concerns  itself  and  in  the  respective  spheres  of  their  interests,  should  take 
measures  to  supervise  and  train  all  aboriginal  labor,  and  should  regulate  it  in 
such  a  way  that  the  work  done  shall  not  be  in  excess  of  the  physical  forces  of 
the  laborers,  whether  the  labor  be  on  public  works  or  private  enterprises. 

5.  It  is  desirable  that  the  colonizing  powers  take  measures  with  a  view  to 
preventing  the  dangers  which  result  from  penury  or  famine  among  the  aboriginal 

populations,  and  which  are  for  them,  periodically,  a  cause  of  epidemic  diseases 
and  abnormal  mortality. 

6.  It  is  desirable  that  the  powers,  each  in  its  own  sphere  and  to  the  extent  it 
may  deem  possible,  should  organize  the  care  of  abandoned  infants  and  children. 
It  is  to  be  hoped  that  in  the  accomplishment  of  this  work  the  colonizing  powers 
will  receive  and  even  invite  private  assistance. 

7.  The  organization  of  the  public  hygiene  being  one  of  the  most  efficacious 
means  to  maintain  the  aboriginal  populations  and  preserve  them  from  degenera- 
tion— 

Considering,  on  the  other  hand,  that  the  Europeans  have  the  effective  control, 
in  moral  and  material  matters,  of  the  aboriginal  peoples  who  are  subjected  to 
their  authority,  and  that  there  is  thus  imposed  upon  all  the  colonizing  powers 
the  obligation  of  giving  to  the  aborigines  all  the  security  -which  it  is  in  their 
power  to  procure  for  them ; 

The  congress  expresses  the  opinion  that  the  measures  of  public  hygiene  ought 
not  to  be  limited  to  the  European  personnel  only.  It  recommends  as  particu- 
larly urgent  the  adoption  of  the  following  measures: 

(a)  In   the   localities   where   leprosy   exists,    there    should    be   created 
asylums,  to  which  should  be  admitted  as  patients  all  lepers  who, 
by  reason  of  the  characteristic  condition  of  the  lesions,  are  likely 
to  be  a  source  of  contagion  for  the  people  of  the  neighborhood. 
These   asylums   should    be    distant    from    the    inhabited    centers. 
They  should  be  established  on  rural  lands  of  large  extent,  so  as 
to  permit  the  lepers  to  enjoy  a  certain  liberty,  under  the  usual 
restrictions  of  non-communication  wdth  the  healthy  localities.    The 
hygienic  care  suitable  to  their  condition  and  the  necessary  atten- 
tion should  be  furnished  by  the  administration. 
The  competent  authorities  ought  to  give  advice  of  the  departure  of 
each  leper  leaving  the  colony  to  the  Government  of  the  country  of 
his  destination. 
(&)   It  is  necessary  to  instruct  the  aboriginal  populations  regarding  the 
grave  dangers  >vhich  syphilis,  under  all  its  forms,  presents,  for  the 
individual,  the  family,  the  community,  and  the  race. 
It  is  desirable  to  institute  in  the  localities  where  they  do  not  exist 
and  to  multiply  in  those  in  which  they  exist,  dispensaries,  hospitals, 
and  consultation  rooms  where  the  malady  may  receive  gratuitous 
treatment ;  hospital  treatment  not  being  made  obligatory. 
In  those  colonies  where  supervised  prostitution  shall  be  introduced 
it  will  be  desirable  that  the  best  arrangements  and  regulations  in 
use  in  the  metropole  should  be  applied. 
<c)  Against  smallpox  it  is  necessary  to  organize  in  tropical  colonies  a 

service  of  public  vaccination. 
id)  It   is  desirable   that   the   colonial   governments   should   give   their 
attention  to  the  creation  of  aboriginal  schools  of  medicine  and  in- 
stitutions for  the  instruction  of  a  sufficient  number  of  aboriginal 
women  as  midwives. 
89581—19 8 


114       THE  QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

(e)  The  streets  and  ways  of  the  European  settlements,  and  of  the 
aboriginal  villages,  tatas,  camps,  or  other  cantonmerrts  should  be 
the  object  of  a  sanitary  police. 

(/)  Against  the  persistent  diseases  of  animals  which  render  difficult 
the  conditions  of  existence  and  labor  of  the  aborigines,  by  de- 
priving them  of  their  beasts  of  labor,  it  is  necessary  to  establish 
a  local  veterinary  service,  to  eradicate  the  diseases  of  animals  and 
prevent  their  recurrence. 

{g)  The  service  of  colonial  hygiene,  in  so  far  as  it  is  a  matter  of  public 
administration,  should  be  directed  by  officials  having  technical 
training  and  knowledge.  Each  colony  ought  to  have  at  its  capital 
a  council  of  hygiene. 

{h)  It  is  desirable  that  the  colonizing  powers  should  publish  each  year 
a  schedule  or  general  report  indicating,  from  the  social  and  demo- 
graphic point  of  view,  the  progress  made  as  respects  public  hygiene 
(the  birth,  sickness,  and  death  statistics)  and  as  respects  private 
or  public  assistance  for  the  benefit  of  the  aborigines. 
It  is  also  desirable  that  the  governments  of  colonies  should  take  care 
to  advise,  as  promptly  as  possible,  the  governments  of  neighboring 
colonies  and  that  of  the  metropole  in  regard  to  matters  occurring 
which  may  affect  the  public  health. 

II.  Is  it  not  necessary,  in  the  interest  of  the  material  condition  of  the 
aborigines,  to  suppress  that  form  of  forced  labor  called  the  corvee? 

Opinion  adopted  by  the  congress: 

The  congress —  , 

Considering  that  the  use  of  the  corvee  produces  nothing  but  inconvenience ; 
that  it  is  a  cause  of  diminution  of  the  aboriginal  population  and  at  the  same 
time  a  danger  to  the  public  tranquility  by  reason  of  the  discontent  which  it 
excites; 

Considering,  on  the  other  hand,  that  it  is  demonstrated  by  experience  that 
the  measures  taken  to  prevent  the  abuses  which  arise  from  the  use  of  the 
corvee  are  always  ineffective  and  illusory ; 

Considering,  finally,  that  it  is  only  free  and  remunerated  labor  which  givea 
beneficial  results,  and  that  there  is  no  colony  in  which  the  necessary  labor  can 
not  be  obtained,  provided  the  remuneration  offered  is  sufficient ; 

Announces  the  opinion — 

That  the  colonizing  powers  should  suppress  the  corv6e,  and  that  they  should 
force  themselves  to  replace  it  by  free  and  remunerated  labor. 

III.  How  to  develop  among  the  aborigines  the  hajbits  of  foresight  and  saving. 
The  congress — 

Considering  that  it  is  important  to  develop  among  the  aboriginal  populations 
habits  of  foresight  and  saving,  and  that,  as  soon  as  these  populations  shall  have 
adopted  these  habits,  many  of  the  difficulties  arising  out  of  colonization  will 
solve  themselves; 

Considering,  on  the  other  hand,  that  the  excellent  results  shown  in  Algeria 
by  the  aboriginal  savings,  mutual-aid,  and  cooperative  societies  organized  under 
the  law  of  April  14,  1893,  have  demonstrated  the  advantages  which  may  be 
derived  from  these  institutions;  that  not  only  are  they  an  excellent  agency  of 
economic  education  for  the  aborigines,  but  that  they  are  susceptible  of  furnish- 
ing to  the  metropole  the  means  for  remedying  the  dangers  which  usury  offers 
to  the  holding  of  property  by  the  aborigines,  and  of  preventing,  or  at  least 
mitigating,  the  consequences  which  flow  from  extreme  poverty  as  respects  the 
conservation  of  aboriginal  races ; 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       115 

Is  of  the  opinion  that  wherever  the  local  conditions  permit,  the  colonizing 
powers  ought  to  give  their  attention  to  bringing  about  the  formation  of 
savings,  mutual-aid,  and  cooperative  societies  among  the  aborigines. 

THE  MORAL  CONDITION   OF  THE  ABORIGINES. 

Means  to  which  it  is  proper  to  have  recourse  in  order  to  raise  the  intellectual 
and  moral  standards  of  the  aborigines. 
Opinions  adopted  by  the  congress : 

1.  The  development  of  the  producing  forces,  which  is  the  basis  upon  which 
human  life  evolves  itself  under  all  its  manifestations,  being  a  powerful  factor 
in  civilization  and  one  of  the  best  means  for  raising  the  moral  standards  of 
aboriginal  populations; 

The  congress  announces  the  opinion — 

That  colonial  policy  should  tend  to  the  continual  improvement  of  the  means 
of  existence  of  the  aborigines  and  the  organization  of  the  labor  performed  by 
them. 

2.  The  congress — 

Considering  that  the  colonizing  powers,  by  extending  their  domination  over 
countries  inhabited  by  populations  of  a  civilization  more  or  less  retarded,  have 
contracted  the  duty  not  only  of  ameliorating  their  material  conditions  of 
existence,  but  also  of  raising  their  intellectual  and  moral  standards ; 

Is  of  the  opinion — 

That  the  colonizing  powers  ought  to  exercise  a  very  particular  solicitude 
over  the  instruction  of  the  aborigines.  They  ought  not  to  forget  that  this 
instruction  ought  to  be  of  a  character  appropriate  to  their  circumstances ;  that 
is  to  say,  that  the  methods  used  and  the  courses  given  ought  to  be  adapted  to 
the  mental  conditions  of  the  aborigines  to  whom  they  are  applied.  The 
instruction  ought,  moreover,  to  be  essentially  educative,  that  is  to  say,  it  ought 
not  to  have  for  its  object  merely  to  give  a  certain  amount  of  professional 
knowledge  to  the  aborigines,  but  it  ought  to  have,  as  an  object  of  its  constant 
attention,  their  moral  improvement. 

3.  The  congress — 

Considering  that  the  colonizing  peoples  have  a  duty  of  education  to  perform 
as  regards  the  aboriginal  populations,  and  that  the  prosperity  of  the  colonies 
is  dependent  upon  the  cooperation  and  the  progressive  culture  of  these  races ; 

Announces  the  opinion — 

That,  by  means  of  schools  and  other  appropriate  institutions,  by  means  of 
encouragement  given  to  free  private  establishments,  and  by  means  of  an  un- 
hampered protection  assured  to  all  civilizing  enterprises,  this  end  ought  to  be 
pursued  without  intermission,  particular  care  being  taken  to  select  out  of  the 
various  means  of  action  those  which  are  adapted  to  the  particular  country,  the 
particular  race,  the  particular  time,  and  the  particular  circumstances. 

4.  The  congress — 

As  regards  the  moral  and  intellectual  improvement  of  the  women  of  the 
Mohammedan  and  Hindoo  peoples; 

Announces  the  opinion — 

That  the  governments  should  encourage  the  creation  or  the  development  of 
professional  schools  of  aboriginal  industries  appropriate  to  the  condition  and 
the  traditions  of  women,  in  which  there  shall  be  given  a  moral  education,  and 
instruction  in  the  language  of  the  colonizing  power,  as  incidental  to  instruction 
■  of  a  technical  kind  by  means  of  which  these  women  may  be  enabled  to  improve 
their  material  condition. 


116       IME  QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

Since  1900  the  nations  generally  have  recognized  this  duty  of 
tutorship.  The  leading  colonizing  States  have  given  increasing  at- 
tention to  education,  to  training  in  civilized  arts,  and  to  sanitation. 
The  International  Colonial  Institute  of  Brussels  has  published  volu- 
minous surveys  of  the  condition  of  education,  in  the  colonies  of  civil- 
ized States  and  collections  of  acts  and  documents  concerning  land 
and  labor  legislation.  Its  sessions,  as  well  as  those  of  the  various 
national  and  international  colonial  congresses  held  in  the  capitals  of 
Europe,  have  been  largely  devoted  to  problems  of  the  tutorship  of 
native  races.  The  publications  of  the  various  scientific  societies  in 
the  European  States  devoted  to  the  study  of  colonization,  disclose 
that  this  tutorship  has  b'een  extensively  practiced  by  the  European 
States,  and  that  the  experiments  have  been  almost  uniformly  suc- 
cessful. 

The  United  States  has,  in  the  Philippines  particularly,  fulfilled 
this  duty  of  tutorship  with  a  conscientiousness  and  zeal  entitling  it  to 
take  the  lead  in  any  future  development  of  the  law  of  nations  in  this 
a^espect. 


CHAPTER  IX. 

THE  LEGAL  EFFECT  OF  AGREEMENTS  BETWEEN  CIVILIZED  STATES  OR  THEIK 
CITIZENS  AND  ABORIGINAL  TRIBES. 

Taking  it  to  be  established  as  a  fundamental  principle  of  the  law 
of  nations  that  aboriginal  tribes  are  the  wards  of  civilized  States,  tho^ 
question  of  the  validity  of  agreements  made  between  civilized  States  > 
and  aboriginal  tribes  is  to  be  determined  by  the  principles  which 
would  apply  in  the  case  of  an  agreement  between  guardian  and  ward.  • 
Such  agreements  are  necessarily  of  a  peculiar  character.  The  guard- 
ian can  not  divest  himself  of  his  duty  to  protect  and  train  his  ward- 
On  the  other  hand,  if  for  any  reason  he  finds  it  necessary  or  expedient 
to  enter  into  an  agreement  with  his  ward,  he  can  not  honorably 
repudiate  it  and  resume  his  power  of  guardianship  and  tutorship 
without  making  some  arrangement  with  his  ward  which  is  just  under 
all  the  circumstances. 

Inasmuch  as  a  State  usually  finds  it  necessary  to  support  and 
champion  its  citizens  and  corporations  in  case  they  enter  into  agree- 
ments with  aboriginal  tribes,  the  principles  applicable  to  such  agree- 
ments are  substantially  the  same  as  those  applicable  to  agreements 
between  civilized  States  and  such  tribes. 

In  the  report  of  the  Committee  of  the  United  States  House  of 
Representatives  on  Indian  Affairs  of  1830,  above  quoted,  it  is  said : 

In  the  primitive  condition  of  tliese  tribes,  tliey  would  liave  been  independent 
In  fact,  if  they  had  inhabited  within  the  jurisdiction  of  the  most  powerful  Euro- 
pean State;  and  it  would  have  been  necessary  to  the  safety  and  order  of  the 
established  society  either  to  exterminate  them  or  to  find  out  some  other  mode 
of  making  their  existence  compatible  with  those  objects. 

To  govern  turbulent  and  warlike  bands  of  Indians  by  regular  law,  adminis- 
tered in  the  ordinary  form,  was  impossible.  To  impose  such  restraints  as  were 
in  the  power  of  the  Government  to  execute  was  all  that  a  practical  people  would 
attempt;  and  therefore  what  ordinary  legislation  and  the  regular  administra- 
tion of  justice  could  not  effect,  the  colonists  sought  to  supply  by  gratuities,  and 
appealing  to  whatever  sense  of  the  obligation  of  promises  the  habits  of  the 
Indians  permitted,  for  the  observance  of  such  rules  of  intercourse  between 
them  and  the  white  population,  as  were  agreed  upon  in  friendly  conference  and 
treaties.  These  treaties  were,  therefore,  but  a  mode  of  government,  and  a  sub- 
stitute for  ordinary  legislation,  which  were  from  time  to  time  dispensed  with,  In^ 
regard  to  those  tribes  which  continued  in  any  of  the  colonies  or  States  until  they 
had  become  inclosed  by  the  white  population.  This  transition  from  the  prac- 
tice of  conciliating  by  treaty  to  that  of  controlling  by  regular  laws  has  taken 
place,  it  is  believed,  with  all  the  tribes  in  the  old  States,  except  Georgia;  and 
in  some  of  the  new,  as  in  Maine.     It  is  true,  that  the  legislation  in  most  of  the- 

117 


118       THE  QUESTION"   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

States  has  been  simple  and  intended  rather  for  the  protection  than  the  re- 
straint of  the  Indians.  The  tribes  thus  brought  within  tlie  ordinary  jurisdic- 
tion of  the  States  are  indulged  in  the  enjoyment  of  their  ancient  usages  so  far 
as  such  a  license  is  found  compatible  with  the  peace  and  good  order  of  society, 
and  whatever  restraints  have  been  imposed  for  anf  purpose  seem,  in  general, 
to  have  been  adapted  to  their  condition  with  a  humane  discrimination.     *     *     * 

More  than  its  due  effect  is  often  given  to  the  circumstance  of  the  actual  inde- 
pendence which  all  the  Indian  tribes  once  enjoyed,  and  which  many  yet  enjoy, 
within  the  territorial  jurisdiction  of  the  United  States,  in  forming  an  opinion 
of  the  right  of  the  appropriate  sovereignty,  where  it  finds  it  expedient,  to  bring 
them  under  the  dominion  of  its  laws.  The  distinction  is  not  always  adverted 
to  between  privileges  and  immunities  indulged,  and  such  as  are  enjoyed  as 
matter  of  right,  between  such  as  are  acknowledged  by  law  and  those  which 
are  merely  tolerated,  either  because  the  State  having  the  right  can  not  or  does 
not  care  to  interfere.  *  *  *  a  State  is  not  obliged  to  exercise  all  its  rights 
of  sovereignty  at  once,  nor  is  it  a  new  case,  or  one  of  uncommon  occurrence,  that 
a  State  finds  itself  deficient  in  physical  resources  necessary  to  the  exercise  of 
its  rights  of  sovereignty.  Humanity  has  often  pleaded  successfully  against  the 
exercise  of  rights  which  belonged  to  a  State  as  essential  attributes  of  sover- 
eignty.    *     *     * 

If  the  States  which  have  exercised  jurisdiction  over  the  Indians  had  done  so 
only  upon  a  surrender  of  the  separate  political  rights  as  a  people,  as  such  an 
act  would  imply  one  of  the  most  affecting  and  solemn  ceremonies  which  the 
intercourse  between  communities  and  nations  can  give  rise  to;  the  forms  pur- 
sued upon  such  imposing  occasions  would  have  found  a  place  among  the  his- 
torical records  of  the  country.  To  attempt  to  give  any  such  solemn  effect  to 
the  submission  of  the  sachem  of  an  Indian  village,  who  had  not  the  power 
to  resist,  or  to  the  more  formal  promises  of  obedience  made  by  powerful  tribes, 
and  which  were  regarded  in  general  as  meaning  nothing  more  than  a  promise 
to  live  in  peace  with  the  white  population,  seems  to  be  supported  by  too  little 
reason  to  deserve  a  serious  notice.  These  stipulations  were  as  often  disre- 
garded as  any  others  into  which  the  Indians  entered ;  and  it  is  not  pretended 
that  a  formal  surrender  of  political  rights  preceded  the  exercise  of  jurisdiction 
in  all  cases.  The  policy  of  the  country  has  always  been  to  avoid  provoking 
the  Indians,  and  even  if  it. could  be  shown  that  the  exercise  of  jurisdiction  In 
any  case  was  avoided  because  the  Indians  objected,  still  the  right  could  not  be 
affected.     *     *    * 

The  character  of  the  whole  legislation  of  the  States  in  regard  to  the  Indian 
tribes  shows  most  conclusively  that  their  consent  to  a  surrender,  either  of  their 
lands  or  liberties,  when  the  substance  is  looked  at,  instead  of  the  forms  of 
things,  will  be  found  to  furnish  no  real  foundation  of  authority  or  right  to 
accept  either  of  the  one  or  the  other.  One  of  the  first  acts  of  most  of  the 
States  after  assuming  jurisdiction  over  the  Indians  has  been  to  declare  un- 
equivocally their  utter  incompetency  to  make  a  contract  upon  equal  terms 
with  the  whites,  or  which  should,  in  equity  and  good  conscience,  be  enforced 
against  them.  Their  lands  and  persons  are  both  taken  into  wardship,  and  the 
members  of  ancient  and  independent  communities  appear  no  sooner  to  have 
yielded  up  their  political  privileges  than  they  have  been  declared  in  a  state  of 
pupilage  and  incapable  of  managing  their  own  private  affairs.  Most  of  the 
tribes  in  the  old  State  have  guardians,  under  some  denomination  or  other,  ap- 
pointed by  law  to  take  charge  of  their  property. 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       119 

At  the  beginning  of  the  report  the  committee  summarized  the. 
general  principles  of  civilized  obligations  applicable  to  agreements  of 
this  peculiar  kind,  as  follows  : 

The  committee  suppose  they  will  not  be  required  to  show,  by  any  illustration 
or  reference  to  authorities,  that  the  faith  of  a  Government  should  in  all  cases 
be  inviolably  observed,  and  that,  in  attending  to  that  indispensable  duty,  all 
its  obligations  should  be  considered ;  that  all  just  and  reasonable  expectations, 
besides  what  may  be  expressly  stipulated  in  a  compact,  should  be  allowed; 
and  that  the  obligation  is  equal  whether  a  treaty  or  compact  be  made  with  a 
foreign  State,  with  independent  or  subject  communities,  or  with  individuals, 
citizens,  or  aliens.  To  these  may  be  added,  as  applicable  to  the  present  in- 
quiry, the  following  maxims  and  principles,  which  are  equally  sustained  by 
reason  and  authority ;  first,  antecedent  engagements  or  compacts  are  entitled 
to  precedence  in  the  observance  of  them;  second,  stipulations  impossible  to  be 
complied  with,  either  for  want  of  power  or  because  they  involve  a  violation  of 
the  rights  of  third  persons  or  States,  if  not  voluntarily  waived,  are  to  be 
compensated;  third,  the  first  duty  of  every  Government* is  to  protect  the  rights 
and  promote  the  prosperity  of  its  own  members ;  yet  the  rights  and  interests 
of  Others,  of  whatever  character  or  condition,  are  not  to  be  wantonly  re- 
stricted, nor  in  any  case  wholly  disregarded. 

The  practice  of  regulating  by  treaty  the  relations  between  a 
civilized  State  exercising  sovereignty  over  a  region  and  the  aborig- 
inal tribes  inhabiting  the  region,  though  permissible  when  these  re- 
lations can  not  be  regulated  by  the  legislative,  executive,  and  judicial 
action  of  the  State,  is  recognized  as  undesirable. 

In  the  report  of  the  British  Parliamentary  Committee  of  1837 
on  Aboriginal  Tribes,  it  was  said : 

As  a  general  rule,  *  *  *  it  is  inexpedient  that  treaties  should  be  fre- 
quently entered  into  between  the  local  governments  and  the  tribes  in  their 
vicinity.  Compacts  between  parties  negotiating  on  terms  of  such  entire  dis- 
parity are  rather  the  preparatives  and  the  apology  for  disputes  than  securities 
for  peace ;  as  often  as  the  resentment  or  cupidity  of  the  more  powerful  body 
may  be  excited,  a  ready  pretext  for  complaint  will  be  found  in  the  ambiguity 
of  the  language  in  which  their  agreements  must  be  drawn  up,  and  in  the 
superior  sagacity  which  the  European  will  exercise  in  framing,  in  interpreting,- 
and  in  evading  them. 

The  wisdom  of  this  suggestion  was  manifested  to  the  British  Gov- 
ernment by  the  terrible  consequences  growing  out  of  an  agreement 
made  with  the  Maori  Tribes  of  the  northern  part  of  New  Zealand 
in  1840,  which  was  so  unfortunately  worded  as  to  give  ground  for 
the  claim  that  Great  Britain  had  recognized  the  tribes  as  an  inde- 
pendent State,  having  the  title  in  fee  to  all  the  land  of  that  part  of 
New  Zealand.  Incessant  trouble  arose  between  the  home  government 
and  the  colonial  government  on  the  one  side,  and  the  Maori  Tribes 
and  the  Europeans  claiming  under  them  on  the  other.  Twice  the 
matter  was  considered  by  parliamentary  committees — in  1840  and 
1844 — ^both  of  which  insisted  that  Great  Britain  had  not  intended 
to  make  any  such  admission,  upholding  its  full  sovereignty  and 


120       THE  QUESTION   OF  ABOEIGINES  IN   THE  LAW  OF  NATIONS. 

r 

recommending  a  compromise  adjustment.  Finally,  in  the  sixties,  the> 
matter  was  settled  by  a  war  with  the  Maoris,  in  which  the  tribes- 
were  defeated  and  almost  destroyed.  This  treaty,  known  as  the 
treaty  of  Waitangi,  provided  as  follows : 

The  chiefs  of  the  Confederation  of  the  United  Tribes  of  New  Zealand,  and 
the  separate  and  independent  chiefs  who  have  not  become  members  of  the 
confederation,  cede  to  Her  Majesty  the  Queen  Of  England,  absolutely  and 
without  reservation,  all  the  rights  and  powers  of  sovereignty  which  the  said 
confederation  or  individual  chiefs  respectively  exercise  or  possess,  or  may  be 
supposed  to  exercise  or  possess,  over  their  territories  as  the  sole  sovereigns 
thereof. 

Her  Majesty  the  Queen  confirms  and  guarantees  to  the  chief  and  tribes  of 
New  Zealand,  and  the  respective  families  and  individuals  thereof,  the  full» 
exclusive,  and  undisputed  possession  of  their  lands  and  estates,  forests,  fish- 
eries, and  other  properties  which  they  may  collectively  or  individually  possess^ 
so  long  as  it  is  their  wish  and  desire  to  retain  the  same  in  their  possession; 
but  the  chiefs  of  the  tJnited  Tribes  and  the  individual  chiefs  yield  to  Her 
Majesty  the  exclusive  right  of  preemption  over  such  lands  as  the  proprietors 
thereof  may  be  disposed  to  alienate,  at  such  prices  as  may  be  agreed  upon 
between  the  respective  proprietors  and  persons  appointed  by  Her  Majesty  to 
treat  with  them  in  that  behalf. 

The  British  Government  regarded  this  treaty  as  acknowledging 
only  a  personal  right  of  occupancy  in  the  aboriginal  tribes  as  respects 
all  land  not  reduced  by  the  tribes  to  agricultural  use,  and  endeavored 
to  extinguish  this  right  by  purchase ;  but  the  tribes,  urged  on  by  the 
colonists  who  had  acquired  title  from  them,  and  by  those  who  ex- 
pected future  profits  from  trading  in  aboriginal  titles  to  lands,  in- 
sisted that  the  treaty  aclmowledged  the  fee  to  be  in  the  tribes,  and 
that  they  could  sell  the  fee  to  any  person ;  and  that  in  case  the  British 
Government  wished  to  buy,  it  must  pay  the  value  of  the  fee  simple- 

A  committee  of  Parliament  on  the  affairs  of  New  Zealand  in  1840^ 
while  affairs  were  in  this  condition,  assuming  that  the  British  Gov- 
ernment would  succeed  in  its  claim  of  right  to  extinguish  the  aborig- 
inal occupancy  by  purchase,  spoke  thus  in  their  report  concerning- 
the  law  applicable  to  the  case,  and  the  policy  which  had  been  pursued 
by  Great  Britain  and  which  it  ought  to  have  pursued : 

The  acknowledgment  of  the  independent  nationality  of  the  natives  has  given 
a  sanction  to  the  acquirement  of  lands  by  individual  purchasers,  because  when 
the  right  of  the  natives  to  sell  to  all  the  world  was  admitted  by  the  British  Gov- 
ernment, it  followed  that  all  persons,  whether  British  subjects  or  others,  had  a 
right  to  buy  without  its  sanction.  Hence  the  Crown,  which,  by  pursuing  a  dif- 
ferent line  of  policy  from  the  time  of  the  discovery,  might  have  prevented  the- 
acquirement  of  land  by  private  purchasers  at  all,  appears  to  be  now  precluded 
from  applying  the  proper  remedy  to  the  evil  without  legislative  aid. 

That  remedy  would,  in  the  opinion  of  your  committee,  have  been  now  uncalled 
for  if  the  British  Government  had,  from  the  year  1769  downward,  never  lost 
sight  of  the  principle  which  was  formerly  acted  upon  by  this  country,  and  by 
all  other  European  powers,  with  regard  to  their  North  American  possessions, 
and  had  refused  to  recognize  any  titles  to  land  founded  on  purchases  made  by 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       121 

private  persons  from  savages.  This  principle  has  been  adopted  by  the  United 
States  and  it  has  constantly  guided  their  Government  in  its  dealings  with  the 
various  Indian  tribes  inhabiting  the  North  American  Continent,  and  it  has  been, 
solemnly  declared  by  the  Supreme  Court  of  Judicature  in  the  United  States  to 
be  a  principle  of  international  law.  According  to  this  principle  the  nation  by 
whose  subjects  a  new  country  is  discovered  acquires  thereby  a  title  to  Its  pos- 
session as  against  all  foreign  powers.  That  title,  when  completed  by  occupation, 
gives  to  the  discovering  nation  the  sole  right  to  purchase  the  soil  from  the 
natives,  to  establish  settlements  within  its  territory,  and  to  regulate  its  rela- 
tions with  foreign  powers.  Upon  this  principle  the  Governments  of  Europe,  as 
well  as  that  of  the  United  States,  have  asserted  their  right — a  right  qualified 
only  by  the  moral  obligation  of  acting  with  justice  to  the  aborigines — to  grant 
lands  to  individuals  in  territories  so  acquired  by  them ;  and  upon  it  the  British 
Government  has  recently  set  aside  purchases  made  by  individual  settlers  from 
the  natives  in  the  neighborhood  of  Port  Philip. 

The  wisdom  of  this  principle  can  not  be  more  clearly  shown  than  by  referring 
to  the  state  of  New  Zealand,  where  it  has  not  been  acted  on.  Large  tracts  of 
land  have  been  acquired  by  settlers  for  nominal  considerations — a  blanket,  a 
hatchet,  or  a  gun.  Disputes  about  the  boundaries  of  land  purchased  have 
arisen,  and  conflicting  claims  to  the  same  property  have  been  set  up.  No 
surveys  of  this  country  have  been  made ;  and  no  law  to  regulate  the  possession 
of  property,  its  descent,  or  its  alienation  is  iu  force.  To  these  evils  must  be 
added  the  more  serious  ones  which  have  been  caused  by  the  profligate  and 
reckless  conduct  of  some  of  the  whites,  who  have  sown  among  the  aborigines 
the  seeds  of  vice  and  misery.  Such  have  been  the  results  of  unrestricted 
colonization  in  New  Zealand. 

Under  such  a  system  it  was  hardly  to  be  expected  that  any  portion  of  the 
land  purchased  would  be  reserved  for  the  use  of  the  natives.  It  will  accord- 
ingly be  found  that  some  tribes  have  been  induced  to  alienate  in  one  sale  the 
whole  of  their  lands;  a  proceeding  by  which  the  difficulty  of  civilizing  and 
preserving  that  interesting  race  is  materially  increased. 

Whilst  private  persons  may  acquire  land  in  the  manner  described,  and  dis- 
pose of  it  on  whatever  terms  they  please,  the  most  approved  method  of  coloniza- 
tion, viz.,  that  of  disposing  of  the  whole  of  the  waste  lands  by  sale  at  a  uniform, 
and  sufficient  price,  can  not  be  carried  into  effect.  The  Government,  it  is  clear, 
can  not  maintain  such  a  price,  and  thus  introduce  labor  into  the  colony  in 
quantities  proportioned  to  the  extent  of  land  held  by  private  owners,  if  those 
owners  can  undersell  the  Government  without  loss  to  themselves. 

Your  committee,  after  much  consideration,  have  arrived  at  the  conclusion, 
that  irreparable  evils  will  ensue  unless  the  Crown  shall  become  the  sole  pro- 
prietor of  the  whole  of  the  soil  of  New  Zealand ;  and  they  are  of  opinion  that 
a  good  system  of  colonization  can  not  be  carried  into  execution  by  any  other 
means. 

Your  committee,  therefore,  entirely  concur  in  the  principle  asserted  in  the 
recent  proclamation  of  the  officers  of  the  Crown,  "  that  Her  Majesty  does  not 
deem  it  expedient  to  recognize  as  valid  any  titles  to  land  in  New  Zealand  which 
are  not  derived  from,  or  confirmed  by  Her  Majesty,"  as  well  as  in  the  propriety 
of  the  appointment  of  a  commission  of  inquiry  into  claims  to  land,  notified  in 
the  said  proclamations. 

In  the  year  1844,  the  situation^ in  New  Zealand  having  steadily, 
become  worse,  the  affairs  of  the  colony  were  again  investigated  by 
a  parliamentary  committee,  which  went  into  the  whole  subject  of  the 


122       THE  QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

law  of  nations  and  the  bearing  of  the  treaty  of  Waitangi  upon  the 
rights  of  Great  Britain  as  the  sovereign  State  over  the  aboriginal 
tribes.  The  report  showed  the  dangers  and  difficulties  incident  to 
the  attempt  to  deal  with  aboriginal  tribes  by  treaty.  The  following 
are  extracts  from  this  report : 

It  appears  to  your  committee  that  the  clifRculties  now  experienced  in  New 
Zealand  are  mainly  to  be  attributed  to  the  fact  that  in  the  measures  which 
have  been  taken  for  establishing  a  British  colony  in  these  islands  those  rules 
as  to  the  mode  in  which  colonization  ought  to  be  conducted,  which  have  been 
drawn  from  reason  and  from  experience,  have  not  been  sufficiently  attended  to. 
When  it  was  first  proposed  to  establish  New  Zealand  as  a  British  colony 
dependent  upon  New  South  Wales,  Sir  George  Gipps,  the  governor  of  the 
latter,  in  a  very  able  address,  laid  down  the  following  principles  as  those  on 
which  he  had  framed  the  bill,  which  it  was  his  duty  to  submit  to  his  legislative 
council  for  the  regulation  of  the  infant  colony  of  New  Zealand :  "  The  bill  is 
founded,"  he  said,  "  upon  two  or  three  general  principles,  which,  until  I  heard 
them  here  controverted,  I  thought  were  fully  admitted,  and  indeed  received  as 
political  axioms.  The  first  is  that  the  uncivilized  inhabitants  of  any  country 
have  but  a  qualified  dominion  over  it,  or  a  right  of  occupancy  only ;  and  that, 
until  they  establish  among  themselves  a  settled  form  of  government,  and 
subjugate  the  ground  to  their  own  uses  by  the  cultivation  of  it,  they  can  not 
grant  to  individuals  not  of  their  own  tribe  any  portion  of  it,  for  the  simple 
reason  that  they  have  not  themselves  any  individual  property  in  it.  Secondly, 
that  if  a  settlement  be  made  in  any  such  country  by  a  civilized  power,  the 
right  of  pi^emption  of  the  soil,  or,  in  other  words,  the  right  of  extinguishing 
the  native  title,  is  exclusively  in  the  Government  of  that  power,  and  can  not 
be  enjoyed  by  individuals  without  the  consent  of  their  Government.  The  third 
principle  is  that  neither  individuals  nor  bodies  of  men  belonging  to  any  nation 
can  form  colonies,  except  with  the  consent  and  under  the  direction  and  control 
of  their  own  Government ;  and  that  from  any  settlement  which  they  may  form 
without  the  consent  of  their  Government  they  may  be  ousted.  This  is  simply 
to  say,  as  far  as  Englishmen  are  concerned,  that  colonies  can  not  be  formed 
without  the  consent  of  the  Crown." 

There  is  no  room  to  doubt  that  it  would  have  been  far  better  if  British  do- 
minion over  these  islands  had  been  asserted  as  early  as  1832,  or  even  1825 ;  but 
a  different  policy  having  been  at  that  time  pursued  it  was  considered,  in  the 
year  1839,  when  Capt.  Hobson  was  sent  out,  that  the  difficulties  which  had  thus 
been  created  could  only  be  got  rid  of  by  obtaining  from  the  natives  their  assent 
to  the  extension  of  the  authority  of  the  British  Crown  over  New  Zealand. 
Acting  under  the  instructions  he  had  received,  Capt.  Hobson,  therefore,  imme- 
diately on  his  arrival  in  New  Zealand,  at  the  beginning  of  the  year  1840,  con- 
cluded, with  a  large  number  of  the  chiefs  of  the  northern  island,  a  treaty  known 
by  the  name  of  the  treaty  of  Waitangi,  by  which,  in  return  for  their  acknowledg- 
ment of  British  sovereignty,  they  were  promised  protection  and  guaranteed  in  the 
possession  of  all  lands  held  by  them  individually  or  collectively.  The  evidence 
laid  before  your  committee  has  led  them  to  the  conclusion  that  the  step  thus 
taken,  though  a  natural  consequence  of  previous  errors  of  policy,  was  a  wrong 
one.  It  would  have  been  much  better  if  no  formal  treaty  whatever  had  been 
made,  since  it  is  clear  that  the  native^  were  incapable  of  comprehending  the 
real  force  and  meaning  of  such  a  transaction;  and  it  therefore  amounted  to 
little  more  than  a  legal  fiction,  though  it  has  already  in  practice  proved  to  be  a 
very  inconvenient  one,  and  is  likely  to  be  still  more  so  hereafter.    The  sovereignty 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OP  NATIONS.       123 

over  the  northern  island  mij^ht  have  been  at  once  assumed,  without  this  mere 
nominal  treaty,  on  the  ground  of  prior  discovery,  and  on  that  of  the  absolute 
necessity  of  establishing  the  authority  of  the  British  Crown  for  the  protection 
of  the  natives  themselves,  when  so  large  a  number  of  British  subjects  had 
irregularly  settled  themselves  in  these  islands  as  to  make  it  indispensable  to 
provide  some  means  of  maintaining  good  order  amongst  them.  This  was  the 
course  actually  pursued  with  respect  to  the  middle  and  southern  islands,  to  which 
the  treaty  of  Waitangi  does  not  even  nominally  extend  ;  and  there  is  every  reason 
to  presume  that,  owing  to  the  strong  desire  the  natives  are  admitted  to  have 
entertained  for  the  security  to  be  derived  from  the  protection  of  the  British 
Government,  and  for  the  advantages  of  a  safe  and  well-regulated  intercourse 
with  a  civilized  people,  there  would  have  been  no  greater  difficulty  in  obtaining 
their  acquiescence  in  the  assumption  of  sovereignty  than  in  gaining  their  consent 
to  the  conclusion  of  the  treaty ;  while  the  treaty  has  been  attended  with  the 
double  disadvantage,  first,  that  its  terms  are  ambiguous  and,  in  the  sense  in 
which  they  have  been  understood,  highly  inconvenient;  and  next,  that  it  has 
created  a  doubt  which  could  not  otherwise  have  existed,  and  which,  though  not 
In  the  opinion  of  your  committee  well  founded,  has  been  felt  and  has  practically 
been  attended  with  very  injurious  results,  whether  those  tribes  which  were 
not  parties  to  it  are  even  now  subject  to  the  authority  of  the  Crown. 

Your  committee  have  observed  that  the  terms  of  the  treaty  are  ambiguous 
and,  in  the  sense  in  which  they  have  been  understood,  have  been  highly  incon- 
venient ;  in  this  we  refer  principally  to  the  stipulations  it  contains  with  respect 
to  the  right  of  property  in  land.  The  information  which  has  been  laid  before  us 
shows  that  these  stipulations,  and  the  subsequent  proceedings  of  the  governor 
founded  upon  them,  have  firmly  established  in  the  minds  of  the  natives  notions 
which  they  had  then  but  very  recently  been  taught  to  entertain,  of  their 
having  a  proprietary  title  of  great  value  to  land  not  actually  occupied;  and 
there  is  every  reason  to  believe  that  if  a  decided  course  had  at  that  time  been 
adopted  it  would  not  have  been  difficult  to  have  made  the  natives  understand 
that,  while  they  were  to  be  secured  in  the  undisturbed  enjoyment  of  the  land  they 
actually  occupied,  and  of  whatever  further  quantity  they  might  really  want  for 
their  own  use,  all  the  unoccupied  territory  of  the  islands  was  to  vest  in  the  Crown 
by  virtue  of  the  sovereignty  that  had  been  assumed. 

The  error  in  policy  which  your  committee  have  pointed  out  as  having  in  our 
opinion  been  fallen  into  by  the  officers  who  have  held  the  government  of  New 
Zealand  in  not  asserting  the  right  of  the  Crown  to  all  the  unoccupied  soil  of 
these  islands,  is  very  closely  connected  with  another,  to  which  we  also  feel  it 
necessary  to  advert.  It  appears  to  us  that  there  has  been  a  want  of  vigor  and 
decision  in  the  general  tone  of  the  proceedings  adopted  toward  the  natives; 
measures  have  not  been  taken,  as  we  think  they  ought,  for  making  the  original 
inhabitants  understand  that  they  are  now  to  be  considered  as  British  subjects 
and  must  therefore  abstain  from  all  conduct  inconsistent  with  that  character. 
The  local  authorities  may  have  been  guided  by  a  desire  to  treat  the  natives  of 
the  soil  with  the  most  scrupulous  justice  and  with  the  greatest  consideration ; 
but  we  are  not  the  less  persuaded  that,  not  only  in  what  has  been  done  with 
regard  to  the  ownership  of  land,  but  also  in  showing  too  much  respect  for  native 
customs,  they  have  been  led  to  pursue  a  line  of  policy  which  in  its  consequences 
must  be  injurious  to  the  true  interests  of  those  out  of  consideration  to  whom  it 
has  been  adopted.  We  agree  in  the  opinion  expressed  by  one  of  the  witnesses 
we  have  examined  *  *  *  that  the  rude  inhabitants  of  New  Zealand  ought 
to  be  treated  in  many  respects  like  children,  and  that  in  dealing  with  them  firm- 
ness is  no  less  necessary  than  kindness.    In  the  first  instance  there  was  on  the 


124       THE   QUESTION   OF   ABORIGINES  IN   THE   LAW   OF   NATIONS^. 

part  of  the  natives  a  disposition  to  defer  with  almost  superstitious  reverence  to- 
the  authority  of  the  Government ;  and  had  this  authority  been  firmly  and  judi- 
ciously exercised  to  suppress  intestine  war  and  all  savage  and  barbarous  customs, 
and  to  enforce  between  different  tribes  and  between  individuals  the  great  prin- 
ciples of  justice  and  respect  for  property,  no  serious  resistance  would  probably 
ever  have  been  attempted.  But  from  an  oversensitive  fear  of  infringing  upoa 
native  rights,  the  authority  which,  had  it  been  decidedly  assumed,  would,  there 
is  every  reason  to  believe,  have  been  w^illingly  submitted  to,  has  been  lost,  and 
the  consequence  has  been,  that  murder  and  cannibalism  have  been  allowed  to  be 
committed  unpunished,  and  that  very  serious  hostilities  have  broken  out  between 
different  tribes,  while  the  right  of  the  British  Government  to  interfere  has  been 
repudiated  by  the  niore  powerful  party,  and  the  want  of  the  promised  protection 
loudly  complained  of  by  the  weakest.  Your  committee  are  persuaded  that  an 
enlightened  humanity  and  a  regard  for  the  real  welfare  of  the  native  tribes 
require  that  British  power  and  authority  should  be  resolutely  exerted  to  put  a 
stop  to  such  a  state  of  things,  to  maintain  internal  peace,  and  to  prevent  native 
customs  and  usages  from  being  acted  upon  in  a  manner  inconsistent  with  good 
order  and  morality  and  with  the  progress  of  civilization. 

Your  committee  can  not  offer  these  recommendations,  tending  to  what  may  be 
thought  a  more  severe  enforcement  of  authority  over  the  natives,  without  at  the 
same  time  expressing  their  strong  sense  of  the  duty  incumbent  upon  the  Govern- 
ment of  adopting  the  most  effective  measures  for  their  welfare  and  improve- 
ment. With  this  view  we  conceive  that  every  effort  should  be  made  to  amalga- 
mate the  two  races ;  more  particularly,  the  utmost  attention  should  be  paid  to 
the  education  and  training  of  the  rising  generation  of  the  aborigines.  Whenever 
their  improvement  in  intelligence  will  admit  of  it,  the  natives  should  be  placed 
in  every  respect  on  a  footing  of  perfect  equality  with  their  white  fellow  subjects, 
and  as  soon  as  possible  they  should  be  employed  in  the  civil  service  of  the  Gov- 
ernment in  any  situations  in  which  they  can  make  themselves  useful.  We  also 
attach  much  importance  to  the  adoption  of  a  good  system  of  making  reserves  of 
land  for  their  benefit. 

In  1840,  at  almost  the  same  time  that  the  affairs  of  New  Zealand 
were  thus  being  plunged  into  confusion  by  the  treaty  of  Waitangi, 
Capt.  (later  Sir)  George  Grey,  as  a  commissioner  of  the  British 
Government  to  report  upon  the  best  means  of  promoting  the  civiliza- 
tion of  the  aboriginal  inhabitants  of  Australia,  made  a  report  to  Lord 
John  Eussell,  then  prime  minister  of  Great  Britain,  in  which  he  advo- 
cated and  gave  the  reasons  for  governing  aborigines  directly  by 
special  laws  and  regulations  adapted  to  their  state  of  wardship  and 
pupilage.  This  report  was  regarded  as  so  sound  by  Lord  Russell 
that  he  sent  copies  of  it  to  the  local  governors  in  Australia  and  New 
Zealand  to  be  considered  and  put  into  effect  with  such  modifications 
as  the  local  situation  might  demand.  The  report  was  in  part  as 
follows  (British  Pari.  Papers,  1844,  vol.  34,  Papers  relating  to  the 
Aborigines,  Australian  Colonies,  pp.  95-102) : 

1.  The  aborigines  of  Australia  having  hitherto  resisted  all  efforts  which  have 
been  made  for  their  civilization,  it  would  appear  that  if  they  are  capable  of" 
being  civilized  it  can  be  shown  that  all  the  systems  on, which  these  efforts  have 
been  founded  contained  some  common  error  or  that  each  of  them  involved  some 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       125 

I 
erroneous  principle;  the  former  supposition  appears  to  be  the  true  one,  for 
they  all  contained  one  element,  they  all  started  with  one  recognized  principle, 
the  presence  of  which  in  the  scheme  must  necessarily  have  entailed  its  failure. 
2.  This  principle  was  that,  although  the  natives  should,  as  far  as  European 
property  and  European  subjects  were  concerned,  be  made  amenable  to  British 
laws,  yet,  so  long  as  they  only  exercised  their  own  customs  upon  themselves  and 
not  too  immediately  in  the  presence  of  Europeans,  they  should  be  allowed  to  do 
so  with  impunity. 

.3.  This  principle  originated  in  philanthropic  motives  and  a  total  ignorance 
of  the  peculiar  traditional  laws  of  this  people,  which  laws,  differing  from  those 
of  any  other  known  race,  have  necessarily  imparted  to  the  people  subject  to  them 
a  character  different  from  all  other  races,  and  hence  arises  the  anomalous 
state  in  which  they  have  been  found. 

4.  They  are  as  apt  and  intelligent  as  any  other  race  of  men  I  am  acquainted 
with;  they  are  subject  to  the  same  affections,  appetites,  and  passions  as  other 
men,  yet  in  many  points  of  character  they  are  totally  dissimilar  to  them ;  and 
from  the  peculiar  code  of  laws  of  this  people  it  would  appear  not  only  impos- 
sible that  any  nation  subject  to  them  could  ever  emerge  from  a  savage  state, 
but  even  that  no  race,  however  highly  endowed,  however  civilized,  could  in 
other  respects  remain  long  in  a  state  of  civilization  if  they  were  submitted  to 
the  operation  of  such  barbarous  customs. 

5.  The  plea  generally  set  up  in  defense  of  this  principle  is  that  the  natives 
of  this  country  are  a  conquered  people,  and  that  it  is  an  act  of  generosity  to 
allow  them  the  full  power  of  exercising  their  own  laws  upon  themselves;  but 
this  plea  would  appear  to  be  inadmissible,  for,  in  the  first  place,  savage  and 
traditional  customs  should  not  be  confounded  with  a  regular  code  of  laws; 
and,  secondly,  w^hen  Great  Britain  insures  to  a  conquered  country  the  privi- 
lege of  preserving  its  own  laws,  all  persons  resident  in  this  territory  become 
amenable  to  the  same  laws,  ancj  proper  persons  are  selected  by  the  Govern- 
ment to  watch  over  their  due  and  equitable  administration.  Nothing  of  this 
kind  either  exists  or  can  exist  with  regard  to  the  customs  of  the  natives  of 
Australia ;  between  these  two  cases,  then,  there  is  no  apparent  analogy. 

6.  I  would  submit,  therefore,  that  it  is  necessary  from  the  moment  the 
aborigines  of  this  country  are  declared  British  subjects  they  should,  as  far  as 
possible,  be  taught  that  the  British  laws  are  to  supersede  their  own,  so  that  any 
native  who  is  suffering  under  their  own  customs  may  have  the  power  of  an 
appeal  to  those  of  Great  Britain ;  or,  to  put  this  in  its  true  light,  that  all  author- 
ized persons  should  in  all  instances  be  required  to  protect  a  native  from  the 
violence  of  his  fellows,  even  though  they  be  in  the  execution  of  their  own  laws. 

In  the  first  report  of  the  United  States  Board  of  Indian  Commis- 
sioners, established  by  Congress  during  the  term  of  President  Grant 
in  1869  and  under  the  influence  of  his  avowed  purpose  to  establish  an 
enlightened  and  humane  regime  for  the  Indians  (whom,  he  declared 
in  his  first  annual  message,  with  emphasis,  to  be  "  wards  of  the  Na- 
tion"), it  was  said: 

The  treaty  system  should  be  abandoned,  and  as  soon  as  any  just  method  can 
be  devised  to  accomplish  it  existing  treaties  should  be  abrogated.  The  legal 
status  of  the  uncivilized  Indians  should  be  that  of  wards  of  the  Government ;  the 
duty  of  the  latter  being  to  protect  them,  to  educate  them  in  industry,  the  arts 
of  civilization,  and  the  principles  of  Christianity;  to  elevate  them  to  the  rights 


126       THE   QUESTION   OF  ABORIGINES  IN   THE  LAW  OF   NATIONS. 

of  citizenship  and  to  sustain  and  clotlie  tliem  until  tliey  can  support  themselves. 
*  *  *  The  honest  and  prompt  performance  of  all  the  treaty  obligations  to  the 
reservation  Indians  is  absolutely  necessary  to  success  in  the  benevolent  designs 
of  the  administration. 

By  the  act  of  Congress  of  March  3,  1871,  future  treaties  Avith  Indian 
tribes  were  forbidden.     This  act  was  as  follows : 

No  Indian  nation  or  tribe  within  the  territory  of  the  United  States  shall  be 
acknowledged  or  recognized  as  an  independent  nation,  tribe,  or  power,  with 
whom  the  United  States  may  contract  by  treaty ;  but  no  obligation  of  any  treaty 
lawfully  made  and  ratified  with  any  such  Indian  nation  or  tribe  prior  to  March 
3,  1871,  shall  be  hereby  validated  or  impaired. 

Since  this  act  was  passed  agreements  with  Indian  tribes  are  made, 
but  such  agreements  are  subject  to  the  approval  of  Congress. 

By  the  treaty  of  March  30,  1867,  between  Kussia  and  the  United 
States,  by  which  Alaska  was  ceded  to  the  United  States,  the  sub- 
jection of  the  aboriginal  tribes  to  the  full  sovereignty  of  the  United 
States  by  the  cession  was  recognized ;  the  treaty  declaring  that  "  the 
uncivilized  tribes  will  be  subject  to  such  laws  and  regulations  as  the 
United  States  may  from  time  to  time  adopt  in  regard  to  aboriginal 
tribes  of  [the  ceded]  country." 

By  the  modern  practice  of  nations,  treaties  with  aboriginal  tribes, 
instead  of  attempting  to  regulate  the  relations  between  the  State 
exercising  sovereignty  and  the  tribe,  as  if  it  were  independent,  are 
made  for  the  purpose  of  arranging  the  terms  of  the  guardianship 
to  be  exercised  over  the  tribe.  Thus  in  the  treaty  between  the 
British  Government  and  the  King  of  Uganda,  after  the.  conquest 
of  Uganda  by  Great  Britain  in  1894,  the  King,  in  pursuance  of  the 
"  protection  "  granted  to  him  by  the  British  Government  and  main- 
tained through  a  local  "  representative  "  of  that  Government,  agreed : 
to  the  following  terms:  To  make  no  treaties  or  agreements  of  any 
kind  with  any  European  without  the  consent  and  approval  of  the 
British  representative;  to  exercise  no  jurisdiction  over  Europeans  and 
persons  not  born  in  Uganda,  and  to  leave  the  exclusive  jurisdiction 
in  such  cases  to  the  British  representative ;  to  allow  the  court  of  the 
British  representative  to  exercise  such  jurisdiction  in  cases  in  which 
the  aborigines  were  concerned  as  it  might  deem  proper;  to  assist  in 
the  execution  of  the  judgments  of  the  British  representative;  to 
recognize  all  international  acts  by  which  Great  Britain  was  bound 
as  binding  on  the  government  of  the  dependency  to  such  extent  as 
might  be  prescribed  by  the  British  Government;  to  undertake  no 
war  or  serious  act  of  state  without  the  consent  of  the  British  repre- 
sentative ;  to  place  the  assessment  and  collection  of  the  internal  taxes 
and  the  external  duties  and  the  disposal  of  the  revenue  in  the  control 
and  revision  of  the  British  Government ;  to  allow  the  property  of  the 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       127 

British  Government  in  the  dependency  to  be  free  from  taxation ;  to 
allow  all  the  foreign  relations  of  the  dependency  to  be  in  the  hands 
of  the  British  representative ;  and  to  abolish  slave  trading  and  slave 
raiding  and  to  assist  in  the  complete  ultimate  abolition  of  slavery 
in  the  dependency. 

(British  Pari.  Papers  1895,  vol.  71  (Cd.  7708),  Africa,  No.  7,  1895, 
pp.  118,  119.) 

In  the  case  of  Choctaw  Nation  v.  The  United  States  (119  U.  S.,  1, 
decided  in  1886),  the  Supreme  Court,  in  an  action  under  a  treaty 
betw^een  the  Choctaw  Nation  and  the  United  States,  making  a  moneys 
settlement  of  claims,  laid  down  the  rules  of  interpretation  of  Indian 
treaties  as  follows : 

The  United  States  is  a  sovereign  Nation,  not  suable  in  any  court  except  by 
its  own  consent,  and  upon  such  terms  and  conditions  as  may  accompany  that 
consent,  and  is  not  subject  to  any  municipal  law.  Its  Government  is  limited 
only  by  its  own  Constitution,  and  the  Nation  is  subject  to  no  law  but  the  law 
of  nations.  On  the  other  hand  the  Choctaw  Nation  falls  within  the  description 
in  the  terras  of  our  Constitution,  not  of  an  independent  State  or  sovereign 
nation,  but  of  an  Indian  tribe.  As  such  it  stands  in  a  peculiar  relation  to  the 
United  States.  It  was  capable  under  the  terms  of  the  Constitution  of  entering 
into  treaty  relations  with  the  Government  of  the  United  States,  although,  from 
the  nature  of  the  case,  subject  to  the  power  and  authority  of  the  laws  of  the 
United  States  when  Congress  should  choose,  as  it  did  determine  in  the  act  of 
March  3,  1871,  embodied  in  2079  of  the  Revised  Statutes,  to  exert  its  legislative 
power.     *     *     * 

The  court  quoted  the  following  from  the  case  of  Worcester  v.  State 
of  Georgia,  6  Peters,  515,  582 : 

The  language  used  in  treaties  with  the  Indians  should  never  be  construed  to 
their  prejudice.  If  words  be  made  use  of  which  are  susceptible  of  a  more 
extended  meaning  than  their  plain  import,  as  connected  with  the  tenor  of  the 
treaty,  they  should  be  considered  as  used  only  in  the  latter  sense.  *  *  * 
How  the  words  of  the  treaty  were  understood  by  this  unlettered  people,  rather 
than  their  critical  meaning,  should  form  the  rule  of  construction. 

The  court  then  proceeded : 

The  recognized  relation  of  the  parties  to  this  controversy,  therefore,  is  that 
between  a  superior  and  an  inferior,  whereby  the  latter  is  placed  under  the 
care  and  control  of  the  former,  and  which,  while  it  authorizes  the  adoption  on 
the  part  of  the  United  States  of  such  policy  as  their  own  public  interests  may 
dictate,  recognizes,  on  the  other  hand,  such  an  interpretation  of  their  acts  and 
promises  as  justice  and  reason  demand  in  all  cases  where  power  is  exerted  by 
the  strong  over  those  to  whom  they  owe  care  and  protection.  The  parties  are 
not  on  an  equal  footing,  and  that  inequality  is  to  be  made  good  by  the  superior 
justice  which  looks  only  to  the  substance  of  the  right,  without  regard  to  tech- 
nical rules  framed  under  a  system  of  municipal  jurisprudence,  formulating  the 
rights  and  obligations  of  private  persons  equally  subject  to  the  same  laws. 

The  rules  to  be  applied  in  the  present  case  are  those  which  govern  public 
treaties,  which,   even   in   controversies  between   nations  equally   independent,. 


128       THE   QUESTION   OF  ABORIGINES  IN   THE  LAW  OF   NATIONS. 

are  not  to  be  read  as  rigidly  as  documents  between  private  persons  governed  by 
a  system  of  technical  law,  but  in  the  light  of  that  larger  reason  which  con- 
stitutes the  spirit  of  the  law  of  nations.  And  it  is  the  treaties  made  between 
the  United  States  and  the  Choctaw  Nation,  holding  such  a  relation,  the  assump- 
tions of  fact  and  of  right  which  they  presuppose,  the  acts  and  conduct  of  the 
parties  under  them,  which  constitute  the  material  for  settling  the  contro- 
versies which  have  arisen  under  them.  The  rule  of  interpretation  already 
stated,  as  arising  out  of  the  nature  and  relation  of  the  parties,  is  sanctioned 
and  adopted  by  the  express  terms  of  the  treaties  themselves.  In  the  eleventh 
article  of  the  treaty  of  1855,  the  Government  of  the  United  States  expresses 
itself  as  being  desirous  that  the  rights  and  claims  of  the  Choctaw  people  against 
the  United  States  "  shall  receive  a  just,  fair,  and  liberal  consideration." 

It  is  thus  evident  that  the  term  "  treaty,"  as  applied  to  an  agree- 
ment between  a  civilized  State  and  an  aboriginal  tribe  is  misleading, 
and  that  such  an  agreement  is,  according  to  the  law  of  nations,  a 
legislative  act  on  the  part  of  the  civilized  State,  made  on  conditions 
which  it  is  bound  to  fulfil  since  it  insists  that  the  aboriginal  tribe 
shall  be  bound  on  its  part.  When  the  executive  of  a  civilized  State 
enters  into  a  "  treaty  "  with  an  aboriginal  tribe,  it  seems  clear  that  he 
exercises,  according  to  the  law  of  nations,  a  legislative  power  over  the 
tribe  in  subordination  to  the  legislature  of  the  State,  and  that  the 
legislature  is  honorably  bound  by  his  act  and  obligated  to  fulfil  the 
conditions,  unless  it  repudiates  the  agreement  before  rights  under  it 
have  become  vested. 

The  modern  practice,  whereby  each  agreement  with  an  aboriginal 
tribe  is  given  the  form  of  an  organic  act  or  charter  determining  the 
manner  of  administration  of  the  tribe  as  a  dependent  community,  or 
the  form  of  an  act  of  legislation  assented  to  by  the  tribe,  seems  to  be 
consistent  wdth  the  law  of  nations  and  with  the  honor  of  civilized 
States. 


CHAPTEK  X. 

THE  FOUNDING  OF  THE  INDEPENDENT  STATE  OF  THE  CONGO,  AND  ITS  EFFECT 
ON  THE  LAW  AND  PRACTICE  OF  NATIONS  REGARDING  ABORIGINES. 

In  the  spring  of  1884  there  existed  two  private  associations  of  an 
international  character,  one  subordinate  to  the  other,  which  were 
making  claim  for  recognition  as  a  State  having  sovereignty  of  the 
basin  of  the  Eiver  Congo.  One  of  these  associations — the  parent 
association — was  known  as  the  International  African  Association; 
the  other — the  offshoot  association — as  the  International  Congo  As- 
sociation. Their  claim  was  based  partly  on  rights  of  discovery 
made  by  Henry  M.  Stanley,  an  American  citizen,  who  had  accepted 
membership  and  office  in  the  associations,  and  partly  on  treaties  made 
with  aboriginal  tribes  largely  through  his  influence.  As  Stanley  had 
first  discovered  and  explored  the  Congo  basin,  the  United  States 
claimed  to  have  a  special  interest  in  the  disposition  and  regulation 
of  the  region,  though  disclaiming  sovereignty  for  itself  in  pursuance 
of  its  traditional  policy  of-  avoiding  entangling  alliances  and  inter- 
vention in  European  politics.  This  special  interest  it  proposed  to 
utilize  for  the  benefit  of  the  aborigines  of  Africa  and  the  citizens 
of  all  the  civilized  States. 

In  a  letter  from  Secretary  of  State  Frelinghuysen  to  Mr.  Tisdel, 
containing  instructions  to  the  latter  as  consular  agent  in  the  Congo 
region,  dated  September  8,  1884,  it  was  said : 

An  American  citizen  first  traced  the  Congo  to  the  sea,  and  were  we  to  admit 
the  validity  of  a  claim  of  sovereignty  over  the  region  based  on  discovery,  the 
United  States  might  well  assert  certain  rights  which  they  have  not  set  up. 
The  policy  of  this  country  has  been  consistent  in  avoiding  entangling  alliances 
and  in  refraining  from  interference  in  the  affairs  of  other  nations.  From  that 
policy  there  is  no  intention  of  departing;  at  the  same  time  the  rights,  com- 
mercial and  political,  of  our  citizens  must  be  protected,  and  in  the  valley  of 
the  upper  Congo  we  claim  those  rights  to  be  equal  to  those  of  any  other  nation. 
(Report  of  the  Secretary  of  State  on  the  Independent  State  of  the  Congo, 
June  30,  1886,  Ex.  Doc.  Sen.  No.  196,  49th  Cong.,  1st  sess.,  p.  347.) 

In  the  letter  of  instructions  from  Secretary  of  State  Frelinghuysen 
to  Mr.  Kasson,  United  States  Minister  to  Germany,  as  delegate  pleni- 
potentiary to  the  Berlin  African  conference,  dated  October  17,  1884, 
it  was  said: 

The  attitude  of  the  United  States  in  this  question  [of  freedom  of  navigation 
of  international  rivers  and  of  access  to  the  riparian  territory]  has  for  many 
89581—19 9  129 


130        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF   NATIONS. 

years  been  clear,  and  in  tlie  particular  case  of  the  Congo  this  Government  was 
among  the  first  to  proclaim  the  policy  of  unrestricted  freedom  of  trade  in  that 
vast  and  productive  region.  This  Government  could,  consequently,  not  be  ex- 
pected to  countenance,  either  by  assent  during  the  progress  of  the  discussions 
or  by  acceptance  of  its  conclusions,  any  result  falling  short  of  the  broad  prin- 
ciple it  has  enunciated. 

Having  thus  stated  -the  minimum  upon  which  the  United  States 
would  insist  by  reason  of  its  special  interests  in  the  Congo  region  by 
reason  of  Stanley's  discoveries,  Secretary  Frelinghuysen  then  stated 
the  maximum  of  the  hopes  of  the  United  States,  toward  the  attain- 
ment of  which  Mr.  Kasson  was  to  direct  his  efforts.  This  part  of  the 
letter  was  as  follows: 

So  far  as  the  government  of  the  Congo  valley  is  concerned,  this  government 
has  shown  its  preference  for  a  neutral  control,  such  as  is  promised  by  the 
Free  States  of  the  Congo,  the  nucleus  of  which  has  already  been  created  through 
the  organized  efforts  of  the  International  Association.  Whether  the  approach- 
ing conference  can  give  further  shape  and  scope  to  the  project  of  creating  a 
great  State  in  the  heart  of  western  Africa,  whose  organization  and  administra- 
tion shall  afford  a  guarantee  that  it  is  held  for  all  time,  as  it  were,  in  trust 
for  all  peoples,  remains  to  be  seen.  At  any  rate,  the  opportunity  which  the 
conference  affords  for  examination  and  discussion  of  these  questions  by  all 
the  parties  directly  or  indirectly  in  interest  should  be  productive  of  broad  and 
beneficial  results.     (Ih.  p.  14.) 

At  the  opening  of  the  Berlin  African  conference  on  November  15, 
1884,  a  program  and  draft  of  declaration  concerning  the  establish- 
ment of  an  "  open-door"  policy  in  the  Congo  Basin,  similar  to  that 
applied  by  the  civilized  States  in  the  case  of  China  and  Japan,  was 
presented  by  the  German  Government.  This  program  had  evidently 
been  agreed  upon  in  advance  by  the  leading  powers.  Prince  Bis- 
marck, who  was  elected  the  permanent  chairman,  declared  that  the 
policy  outlined  in  the  proposed  declaration  was  based  on  ':  the 
regime  which  has  been  observed  for  a  number  of  years  in  the  rela- 
tions of  the  western  powers  with  the  countries  of  eastern  Asia," 
which  had  been  "  thus  far  attended  with  the  most  favorable  results, 
in  that  it  had  restricted  commercial  rivalry  to  legitimate  competi- 
tion."    (/Z>.,  p.  25.) 

Mr.  Kasson,  according  to  his  instructions,  in  a  declaration  of  the 
poliey  of  the  United  States  read  to  the  conference  at  its  second 
session  on  November  19,  1884,  accepted  this  plan  for  subjecting  the 
Congo  region  to  the  open-door  policy  applied  in  China  and  Japan, 
as  a  minimum  on  which  the  United  States  would  insist,  and  stated 
its  maximum  of  hopes  and  desires.  This  part  of  the  United  States' 
statement  was  as  folloAvs : 

While  declaring  the  general  concurrence  of  the  Government  of  the  United 
States  with  the  views  expressed  in  the  opening  address  of  his  highness,  the 
president  of  this  international  conference,  it  may  be  useful  to  state  briefly  the 
relation  of  my  Government  to  pending  African  questions. 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       131 

Until  the  year  1874  a  large  section  of  the  heart  of  Africa,  comprising  a  great 
part  of  its  salubrious  uplands,  was  wholly  unknown  both  to  the  geographers 
and  to  the  statesmen  of  Europe  and  America. 

An  American  citizen,  who  was  qualified  by  courage,  persevei'ance,  and  intelli- 
gence, and  by  a  remarkable  intrepidity  and  aptitude  in  exploration,  resolved, 
with  the  support  of  English  and  American  friends,  to  expose,  if  possible,  to  the 
light  of  civilization  this  obscure  region.  With  the  peaceful  flag  of  his  country 
over  his  tent,  and  at  the  head  of  his  retainers,  he  disappeared  from  the  knowl- 
edge of  his  countrymen ;  and  after  39  very  long  and  very  dangerous  months  of 
exploration  and  travel,  he  reappeared  with  the  results  of  his  discoveries,  w^hich 
were  communicated  to  the  world. 

It  is  to  be  observed  that  from  the  time  he  left  the  eastern  coast  of  Africa, 
opposite  Zanzibar,  during  his  travels  to  and  beyond  the  upper  waters  of  the  Nile„ 
as  far  as  the  watershed  of  the  Congo,  and  along  the  course  of  that  great  river, 
while  slowly  descending  toward  the  sea,  and  until  he  saw  an  ocean  steamer- 
lying  in  the  lower  Congo,  he  found  nowhere  the  presence  of  civilized  authority,, 
no  jurisdiction  claimed  by  any  representative  of  white  men  save  his  own  over 
his  retainers,  no  dominant  flag  or  fortress  of  a  civilized  power,  and  no  sover^ 
eignty  exercised  or  claimed  except  that  of  the  indigenous  tribes. 

His  discoveries  aroused  the  attention  of  all  nations.  It  was  evident  that  very 
soon  that  country  would  be  exposed  to  the  dangerous  rivalries  of  conflicting 
nationalities.  There  was  even  danger  of  its  being  so  appropriated  as  to  exclude 
it  from  free  intercourse  with  a  large  part  of  the  civilized  world. 

It  was  the  earnest  desire  of  the  Government  of  the  United  States  that  these 
discoveries  should  be  utilized  for  the  civilization  of  the  native  races  and  for 
the  abolition  of  the  slave  trade,  and  that  early  action  should  be  taken  to  avoid 
international  conflicts  likely  to  arise  from  national  rivalry  in  the  acquisition 
of  special  privileges  in  the  vast  region  so  suddenly  exposed  to  commercial  enter- 
prises. If  that  country  could  be  neutralized  against  aggression,  with  equal 
privileges  for  all,  such  an  arrangement  ought,  in  the  opinion  of  my  Govern- 
ment, to  secure  general  satisfaction.     (lb.,  p.  34.) 

The  maximum  of  the  hopes  and  desires  of  the  United  States  for 
the  utilization  of  its  special  interests  in  middle  Africa  in  the  general 
interests  might,  it  would  seem,  be  summarized  as  follows:  Firsty 
that  all  nations  should  unite  in  founding  "  a  great  State  in  the  heart 
of  western  Africa  whose  organization  and  administration  [should] 
afford  a  guarantee  that  it  is  to  be  held  for  all  time,  as  is  were,  in 
trust  for  the  benefit  of  all  peoples  " ;  second,  that  the  obligations  of 
this  international  trusteeship  should  be  "  the  civilization  of  the  native 
races  "  and  the  assurance  of  "  equal  privileges  for  all "  as  respects 
"commercial  enterprises";  third,  that  the  proposed  trustee  State, 
in  order  to  fulfill  its  international  trusteeship,  should  be  "neutra- 
lized against  aggression." 

The  Monroe  doctrine,  having  for  its  object  the  interests  of  all 
civilized  States  and  of  humanity  at  large,  not  only  did  not  prevent 
such  a  policy  respecting  middle  Africa  on  the  part  of  the  ITnited 
States,  but  logically  made  it  necessary. 

The  United  States,  therefore,  was  willing  to  use  these  international 
associations  as  an  agent  or  trustee  of  civilization  in  carrying  out  its 


132        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF    NATIONS. 

humane  purposes.  It  only  required  to  be  satisfied  that  they  were  so 
organized,  so  administered,  and  so  committed  to  international  trustee- 
ship that  they  were  likely  to  effect  this  purpose.  Upon  being  so 
satisfied  its  position  logically  compelled  it  to  take  the  lead  in  recog- 
nizing the  associations,  or  one  of  them,  as  having  at  once  sovereignty 
and  trusteeship,  since  only  through  the  exercise  of  sovereign  power 
under  an  international  trusteeship  was  it  possible  for  the  humane  ])ur- 
poses  of  the  United  States  to  be  fulfilled. 

In  the  latter  part  of  1883  and  the  early  part  of  1884,  when  the 
modern  colonizing  movement  of  the  European  States  began,  due  to 
inventions  which  caused  a  sudden  expansion  of  trade,  manufacture, 
and  transportation,  middle  Africa,  from  its  proximity  to  Europe, 
became  the  field  of  European  colonizing  operations.     The  parts  of 
the  coast  not  effectively  under  the  sovereignty  of  a  European  power 
were  claimed  by  other  European  States,  either  by  mere  occupation 
or  by  occupation  under  "  treaties  "  made  with  the  aboriginal  tribes, 
by  which  these  tribes  acknowledged  the  sovereignty  of  the  occupy- 
ing State  and  submitted  to  its  protection.    An  occupancy  of  the  coast, 
according  to  recognized  principles  of  international  law^,  might  be 
made  the  basis  of  an  occupancy  extending  throughout  the  basins  of 
the  rivers  emptying  into  the  sea  on  the  part  of  the  coast  occupied. 
Thus  the  movement  to  occupy  effectively  the  coasts  of  middle  Africa, 
unless  checked  by  an  effective  civilized  sovereignty  in  the  interior  of 
Africa,   acting  under  international  responsibility  in   the   common 
interest,  would  necessarily  result  in  the  partition  of  middle  Africa 
among  the  European  powers,  and  the  United  States  would  gain  noth- 
ing for  the  aborigines  of  Africa  or  for  the  world  at  large,  from  its 
special  interests  under  Stanley's  discoveries. 

In  February,  1884,  Great  Britain  and  Portugal  made  a  treaty 
whereby  Portugal's  claim  to  the  coast  at  the  mouth  of  the  Congo 
was  recognizee],  by  Great  Britain,  thus  paving  the  way  for  a  claim 
of  sovereignty  by  Portugal,  and  indirectly  and  ultimately  by  Great 
Britain  as  patron  of  Portugal,  over  the  Avhole  basin  of  the  Congo. 
France  sought  to  prevent  this  by  sending  explorers  and  agents  into 
the  region  north  of  Portugal's  claim,  to  lay  the  basis  of  a  sovereignty 
on  its  part,  extending  from  the  Atlantic  north  of  the  mouth  of  the 
Congo  through  the  Congo  Basin  to  the^  river.  Thus  the  Portuguese 
claim  to  the  whole  basin  of  the  Congo  would  be  blocked,  but  at  the 
same  time  the  territorial  claims  of  the  International  Associations  to 
the  Congo  Basin  would  be  reduced.  If  Portugal  and  Great  Britain 
were  allowed  to  locate  at  the  mouth  of  the  Congo,  and  France  on  the 
river  above  its  mouth  for  a  considerable  distance,  they  were  in  a  posi- 
tion to  close  the  upper  basin  of  the  Congo  to  the  outside  world  and 
make  it  impossible  for  the  United  States  to  realize  its  philanthropic 


THE  QUESTION   OF  ABORIGINES  IN    THE  LAW  OF   NATIONS.       133 

plan  to  utilize  its  special  interests  under  Stanley's  discoveries  for  the 
good  of  the  aborigines  of  Africa  and  of  all  civilized  peoples. 

The  questions  presented  to  the  United  States  in  the  spring  of  1884 
were :  First,  could  it,  according  to  the  law  of  nations,  recognize  as  a 
State  a  private  association  of  civilized  persons  actually  exercising  a 
persuasive  sovereignty  over  aboriginal  tribes  in  Africa ;  and,  second, 
could  it,  in  its  recjognition,  so  far  impress  an  international  character 
upon  the  territory  under  the  actual  persuasive  sovereignty  of  the 
association,  that,  in  case  it  could  secure  the  cooperation  and  consent 
of  the  powers,  the  territory  Avould  permanently  have  an  international 
character,  assuring  its  administration  for  the  benefit  of  the  aborigines 
and  the  world  at  large,  regardless  of  whether  there  should  ever  be  a 
cession  of  the  sovereignty  or  not  ?  Unless  the  maintenance  of  the  in- 
ternational character  could  be  made  a  covenant  running  with  the 
land  the  philanthropic  purpose  of  the  United  States  plainly  could  not 
be  fulfilled. 

The  publicists  agreed  generally  that  a  private  association  actually 
exercising  sovereignty  could,  by  the  law  of  nations,  be  recognized  as 
a  State.  The  question  was  concerning  the  objects  and  administra- 
tion of  the  associations  and  the  manner  of  impressing  an  interna- 
tional character  upon  the  territory  claimed  by  them. 

The  International  African  Association  was  the  result  of  an  inter- 
national conference  of  geograjDhical  societies  held  at  Brussels  in  1876, 
which  had  been  suggested  in  various  quarters,  but  which  was  actually 
called  by  King  Leopold  II  of  Belgium.  Belgium  was  under  a  neu- 
trality guaranteed  by  Great  Britain,  France,  and  Germany,  and  w^as 
not  a  colonizing  power.  It  was  doubtless  felt  that  an  international 
agency  to  civilize  Africa  would  be  more  likely  to  appeal  to  the  public 
as  truly  international  if  it  had  its  foundation  in  Belgium,  than  if  it 
were  founded  in  one  of  the  colonizing  States.  Leopold  II,  having 
interested  himself  in  geography  and  exploration,  naturally  was 
elected  to  the  presidency. 

The  plan  of  an  international  association  to  civilize  Africa  was 
not  a  new  one.  The  various  African  negro  colonization  societies  in 
the  United  States,  National  and  State,  had  suggested  the  idea.  In 
1840  Thomas  Fowell  Buxton,  in  his  book  on  "The  African  Slave 
Trade  and  Its  Remedy,"  had  presented  a  plan  for  an  international 
association  for  middle  Africa  at  considerable  length  and  with  great 
ability,  outlining  the  objects  and  presenting  a  scheme  of  organiza- 
tion. His  plan  was  substantially  followed  by  the  Brussels  Geo- 
graphical Conference  of  1876.  The  conference  constituted  itself 
into  the  International  African  Association,  the  object  being  to  form 
a  series  of  scientific  stations  in  middle  Africa  as  foci  for  the  efforts 
of  the  civilized  States  to  civilize  the  aborigines  and  open  up  the 
country  to  the  commerce  of  the  world. 


134        THE   QUESTION    OF   ABORIGINES   IN    THE   LAW   OF   NATIONS. 

The  plan  proposed  by  Buxton,  in  1840,  was  in  advance  of  his  times. 
By  1876,  however,  the  developments  in  science  and  religion  which 
led  to  the  founding  of  the  Red  Cross  Association  at  about  the  same 
time,  made  Buxton's  plan  possible.  M.  Gustave  Moynier,  one  of 
the  founders  of  the  Red  Cross,  was  also  one  of  the  founders  of  the 
International  African  Association,  and  the  two  associations  at  the 
outset  evolved  on  parallel  lines;  the  one  combatting  suffering,  the 
other  ignorance.  The  Geographical  Congress  made  a  declaration 
on  the  subject  of  stations,  in  which  it  was  said : 

In  order  to  attain  the  object  of  the  International  Conference  of  Brussels, 
that  is  to  say,  to  explore  scientitically  the  unknown  parts  of  Africa,  to  facili- 
tate the  opening  of  roads  which  may  cause  civilization  to  penetrate  into  tlie 
Interior  of  tlie  African  continent,  and  to  discover  means  for  suppressing  t]i(» 
negro  slave  trade  in  Africa,  it  is  necessary : 

First,  to  organize  on  a  common  international  plan  the  exploration  of  the 
Tinknown  parts  of  Africa,  on  tlie  understanding  tliat  the  region  to  be  exploro<l 
is  to  have  for  its  boundaries,  eastward  and  westward,  tlie  two  seas:  soulli- 
ward,  the  basin  of  the  Zambesi ;  and  northward,  the  frontiers  of  tlie  new 
Egyptian  territory  and  independent  Soudan.  The  means  best  sidapted  for 
this  exploration  will  be  the  employment  of  a  sufficient  number  of  sei)ar:ite 
travelers  starting  from  different  bases  of  operation;  second,  to  establish  as 
the  bases  of  these  operations  a  certain  number  of  scientific  and  relief  stations, 
both  on  the  coasts  of  Africa  and  in  the  interior  of  the  continent.  Of  these 
stations,  some  will  be  established,  in  very  limited  numbers,  on  the  eastern  and 
western  coasts  of  Africa,  at  points  where  European  civilization  is  tilready 
represented,  as,  for  example,  at  Bagamayo  and  Loanda.  The  stations  should 
liave  the  character  of  depots  provided  with  the  means  of  supplying  travelers 
with  the  necessaries  of  existence.  They  might  be  established  at  small  expense, 
for  they  vrould  be  intrusted  to  the  charge  of  Europeans  residing  at  these  points. 

The  other  stations  could  be  established  at  points  in  the  interior  best  adaptea 
to  serve  as  immediate  bases  for  explorations.  The  establishment  of  these  latter 
stations  could  be  commenced  at  the  points  which  at  the  present  time  recommend 
themselves  as  most  favorable  for  the  proposed  purpose.  *  *  *  The  ex- 
plorers would  be  able  afterwards  to  point  out  other  positicms  where  it  would 
he  convenient  to  set  up  similar  statioia^*. 

Leaving  to  the  future  the  care  of  establishing  safe  communications  between 
the  stations,  the  conference  expresses  the  desire  that  a  line  of  communication 
us  nearly  continuous  as  possible  should  be  established  from  one  ocean  to 
the  other,  following  approximately  the  route  of  Commander  Cameron.  The  con- 
ference also  expresses  the  hope  that  lines  of  operation  will  be  subsequently 
established  running  from  north  to  south. 

The  above  declaration  is  taken  from  the  book  published  in  1877 
hj  Emile  Banning,  one  of  the  Belgian  members  of  the  conference, 
entitled  '^UAfriqiie  et  la  Conference  Geographique  de  Bruxelles^^ 
t^nd  translated  into  English  by  R.  H.  Major.  In  this  book  the  con- 
stitution of  the  International  African  Association  formed  at  the  con- 
ference is  given  in  full.  This  association  Avas  in  this  constitution 
called  the  "  International  Commission  of  Exploration  and  Civiliza- 
tion of  Central  Africa."    Mr.  Banning,  describing  the  membership 


THE  QUESTION   OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       135 

of  the  conference,  says  that  the  delegates  were  "  selected  in  such  a 
manner  that  they  should  faithfully  represent,  whether  they  were  one 
or  many,  the  opinions  of  their  different  nations  on  the  subject  of 
African  questions,"  and  that  "science,  philanthropy,  and  general 
policy  *  *  *  had  their  representaiives."  An  examination  of  the 
list  of  distinguished  publicists  and  scholars  who  served  as  delegates 
shoAYs  that  this  statement  is  entirely  correct.  Describing  the  nature 
of  the  organization,  Mr.  Banning  said : 

From  the  nature  of  the  constituent  elements  of  the  conference,  there  naturally 
resulted,  the  principles  of  the  organism  which  was  to  give  to  its  work  motion 
and  life.  This  organism  comprised  three  fundamental  agencies,  an  interna- 
tional commission,  an  executive  committee,  and  national  committees.     *     *     * 

The  international  commission  is  the  parliament  of  the  association.  It  is 
composed,  according  to  the  terms  of  the  resolutions  adopted  by  the  conference, 
of  the  presidents  of  the  principal  geographical  societies  represented  at  Brus- 
sels, or  adhering  to  its  program,  and  of  two  members  delegated  by  each  national 
committee. 

The  executive  committee  *  *  *  is  composed  of  the  president  of  the  in- 
ternational commission,  who  sits  as  such  in  the  committee;  of  three  or  four 
members  designated  in  the  first  instance  by  the  conference  and  subsequently  by 
the  commission,  and  of  a  secretary-general  named  by  the  president.    *     *     * 

The  national  committees  are  *  *  *  the  popular  bases  of  the  work,  the 
instrument  of  propaganda,  and  the  foundation  of  the  pecuniary  resources  of 
the  association.  *  *  *  Each  country  will  determine  as  it  sees  fit  the  method 
of  organization  [of  its  national  conmiittee]  ;  but  everywhere  they  will  have  the 
same  mission  to  fulfil.  This  mission  *  *  *  will  be  to  popularize  in  every 
way  the  knowledge  concerning  Africa,  to  make  known  the  physical  and  ethnic 
conditions,  the  needs  and  the  resources,  the  splendors  and  the  horrors.  It  will 
be  necessary  to  interest  in  the  labors  and  the  heroic  enterprises  of  travelers, 
numbers  of  persons  whose  apathy  is  only  due  to  their  ignorance,  to  attract 
public  sympathy  toward  the  millions  of  humaa  beings  who  remain  excluded 
from  the  benefits  of  civilization,  or  who  know  of  it  only  by  the  wrongs  which 
the  most  unworthy  of  its  representatives  have  inflicted  upon  them. 

Mr.  Banning  considered  that  one  of  the  results  of  the  action  of 
the  association  would  be  the  abolition  of  the  slave  trade,  and  that 
only  by  efforts  such  as  it  proposed  could  the  trade  be  prevented. 
After  referring  to  the  declaration  of  the  congress  of  Vienna  and 
Verona  against  the  trade  and  the  international  agreements  and  action 
of  the  maritime  powers  for  stopping  the  trade  by  capture  of  slave- 
trading  vessels,  he  said : 

It  is  a  universal  conviction  that  the  most  active  cruisers  are  powerless,  and 
that  the  slave  trade^  can  be  destroyed  only  upon  the  very  soil  which  is  the 
scene  of  its  ravages.  Such  is  precisely  one  of  the  essential  objects  which  the 
international  association  pursues.  In  opening  up  Africa  to  science,  to  Christi- 
anity, to  commerce,  in  civilizing  its  peoples,  it  adopts  the  true,  the  only,  sj^stem 
which,  by  the  agreement  of  all  the  African  travelers,  can  possibly  result  in  the 
complete  and  final  abolition  of  the  slave  trade.  It  is,  then,  the  program  of 
Europe  which  the  association  has  taken  upon  itself  to  execute,  and  what  can 
be  more  just,  then,  than  to  expect  all  the  governments  to  lend  it  a  sympathetic 


136       THE   QUESTION   OF  ABORIGINES  IN  THE  LAW   OF   NATIONS. 

aid.  *  *  *  Perhaps,  if  powerfully  aided  at  the  same  time  by  private  benefi- 
cence, it  might  be  able  to  enter  upon  the  execution  of  its  program  in  several 
respects  at  the  same  time. 

The  executive  committee  named  by  the  conference  was:  King 
Leopold,  of  Belgium,  as  president;  Sir  Bartle  Frere,  of  Great 
Britain;  Dr.  Nachtigal,  of  Germany;  and  M.  de  Quatrefages,  of 
France. 

The  association,  in  order  to  distinguish  its  stations  in  Africa  and 
to  give  them  all  a  common  bond  and  symbol,  adopted  a  flag — blue, 
with  a  golden  star  in  the  center. 

The  executive  committee  conducted  its  operations  in  Africa  for  a 
considerable  time  under  the  name  of  the  Oomite  cPEtudes  dii  Haut 
Congo — the  Committee  for  the  Study  of  the  Upper  Congo — ^thus 
avoiding  giving  offense  to  the  European  States,  especially  Portugal 
and  Great  Britain,  who  had  claims  on  the  lower  Congo.  Stanley 
himself  became  a  member  of  the  committee  and  its  chief  representa- 
tive in  middle  Africa.  , 

None  of  the  States  saw  fit  to  pay  money  from  their  treasuries  to 
this  private  association,  and  private  subscriptions  were  small;  so 
that  the  expenses,  which  were  large,  had  to  be  borne  by  the  executive 
committee,  and  principally  by  Leopold  II.  The  object  could  evi- 
dently be  attained  only  by  the  exercise  of  governmental  power,  in- 
cluding that  of  local  taxation.  The  executive  committee  and  other 
persons,  almost  exclusively  Belgians,  then  organized  themselves  into 
the  International  Congo  Association,  as  the  political  agent  of  the 
International  African  Association,  which  was  still  assumed  to  be  in 
existence  by  reason  of  the  existence  of  the  national  committees, 
though  it  never  met  as  an  association.  The  International  Congo 
Association,  as  the  political  agent  of  the  other  association,  adopted 
its  flag  as  its  own,  and  sent  out  agents  to  explore  the  country  and 
thus  to  complete  the  claim  of  discovery  based  on  the  discoveries  of 
Stanley.  Stanley  and  the  other  agents  of  the  International  Congo 
Association,  under  the  flag  of  the  original  association,  made  treaties 
with  the  aboriginal  tribes,  by  which  the  tribes  were  by  the  associa- 
tion recognized  as  "  free  States,"  and  the  tribal  chieftains,  on  their 
part,  recognized  the  association  as  their  common  agency  to  manage 
the  interests  of  the  tribes. 

M.  Georges  Blanchard,  in  his  book  entitled  Formation  et  Con- 
stitution Politique  de  VEtat  Independant  du  Congo^  published  in 
1899,  speaking  of  the  difficulties  of  the  International  Congo  Associa- 
tion in  attempting  to  organize  politically  the  Congo  Basin,  has  said 
(pp!  28,  29)  : 

On  the  one  hand,  it  was  necessary  to  employ  a  protectorate  compatible  with 
the  spirit  of  independence  of  the  numerous  small  independent  native  sovereign- 


THE  QUESTION  OF  ABOKIGINES  IN  THE  LAW  OF  NATIONS.       137 

tics  included  within  tlie  domain  of  tlie  association.  On  tlie  otlier  liand,  it  was 
necessary  to  liave  over  tliem  an  autliority  wliich  would  actually  be  able  to 
induce  them  to  renounce  their  inhuman  practices,  such  as  cannibalism.  *  *  * 
As  long  ago  as  1879  Col.  Strauch,  the  president  of  the  association,  had 
written :  "  Our  enterprise  has  in  view  the  establishment  of  a  powerful  negro 
state."  But  Stanley  refused  to  agree  to  this.  The  association  then  proposed 
to  him  to  take  for  its  object  the  founding  of  a  "  Republican  confederation  of 
free  negroes,"  of  which  King  Leopold  should  be  the  president,  residing  in 
Europe.  But  Stanley  would  not  at  first  accept  this  idea,  considering  the 
negroes  as  too  jealous  of  their  independence  to  lend  themselves  to  such  a 
combination.  But,  nevertheless,  after  his  first  refusal  he  changed  his  mind 
and  himself  drew^  up  a  kind  of  constitution,  which,  on  April  8,  1883,  he  caused 
to  be  adopted  at  Leopoldville  by  the  chiefs  and  principal  men  of  58  districts. 
By  this  document  they  declared  that  they  grouped  themselves  into  a  con- 
federation and  deputed  to  the  white  superintendent  at  Leopoldville  their  col- 
lective armed  force,  but  they  maintained  formally  their  independence.  This 
treaty  served  thenceforward  as  the  model  for  all  those  which  the  association 
entered  into  with  the  negroes  whose  countries  it  occupied,  and  accustomed  them 
gradually  to  the  idea  of  a  unitary  state. 

Out  of  this  political  arrangement  came  the  name  "  The  Free  States 
of  the  Congo,"  popularly  adopted  in  1883  and  1881  to  designate  the 
aboriginal  tribes  inhabiting  the  Congo  region,  as  unified  in  some 
sense  through  the  International  Congo  Association  under  the  flag 
of  the  International  African  Association. 

As  respects  the  question  of  how  an  international  trusteeship  could 
be  impressed  upon  the  association  if  it  should  be  recognized  as  a 
State,  so  that  the  trusteeship  should  be  a  covenant  running  with  the 
land,  the  use  of  the  term  "  free  "States  "  perhaps  throws  light.  The 
situation  was  analogous  to  that  which  existed  in  the  United  States 
from  1783  to  1787  as  respects  the  Northwest  Territory.  The  States 
having  special  interests  in  that  territory  were  willing  to  renounce 
these  special  interests  only  in  case  they  were  assured,  by  a  covenant 
running  with  the  land  of  the  Northwest  Territory,  that  it  would  be 
laid  out  into  "  free  States,"  which  should  ultimately  be  admitted 
into  the  Union;  that  within  the  territory  the  aborigines  should  be 
justly  and  humanely  treated ;  that  all  other  persons  should  enjoy  the 
equal  opportunity  and  privileges  which  they  enjoyed  within  the 
Union;  and  that  the  territory  should  be  "neutralized  against  ag- 
gression" by  being  placed  under  the  plenary  sovereignty  and  the 
protection  of  the  United  States.  These  matters  were  made  the 
subject  of  a  fundamental  compact  in  the  ordinance  of  1787  for  the 
Government  of  the  Northwest  Territory  adopted  by  the  Congress  of 
the  Confederation.  By  the  Constitution  the  United  States  assumed 
the  obligation  of  this  fundamental  compact  and  has  ever  since  in- 
sisted on  its  fulfillment  by  all  the  "  free  States,"  which  were  after- 
wards organized  in  the  territory,  as  a  covenant  running  with  the 
land. 


138        THE   QUESTION   OF   ABOEIGINES  IN"   THE   LAW   OF   NATIONS. 

The  article  of  this  fundamental  compact  relative  to  aborigines, 
which,  as  will  be  noticed,  combined  the  subject  of  education  with 
that  of  aborigines,  was  as  follows: 

Religion,  morality,  and  knowledge  being  necessary  to  good  government  and 
the  happiness  of  mankind,  schools  and  the  means  of  education  shall  forever  be 
-encouraged.  The  utmost  good  faith  shall  always  be  observed  toward  the 
Indians;  their  lands  and  property  shall  never  be  taken  from  them  without 
their  consent;  and  in  their  property,  rights,  and  liberty  they  never  shall  be 
invaded  or  disturbed  unless  in  just  and  lawful  wars  authorized  by  Congress ; 
but  laws  founded  in  justice  and  humanity  shall,  from  time  to  time,  be  made 
for  preventing  wrongs  being  done  to  them  and  for  preserving  peace  and  friend- 
ship with  them. 

The  method  of  a  "  fundamental  compact "  which  the  United  States 
had  used  in  the  ordinance  for  the  government  of  the  Northwest  Ter- 
ritory was,  however,  not  capable  of  application  in  the  case  of  the 
dealings  between  the  United  States  and  the  International  Congo 
Association.  The  "  fundamental  compact "  in  the  former  case  was  a 
purely  domestic  arrangement,  operating  only  as  a  limitation  upon 
the  powers  of  the  United  States  and  the  States  in  favor  of  their  own 
citizens.  A  treaty  or  agreement  made  by  the  United  States  with  the 
International  Congo  Association,  imposing  a  covenant  running  with 
the  land  of  the  Congo  region  for  the  benefit  of  the  inhabitants  and 
the  world  in  general,  might  entangle  the  United  States  with  Euro- 
pean States  as  a  party  to  the  compact  and  a  guarantor  of  the  associa- 
tion. In  order  to  avoid*  all  possibility  of  the  United  States  assuming 
responsibility  for  the  dealings  of  the  association  with  the  aborigines, 
and  with  the  citizens  of  civilized  States,  and  at  the  same  time  to 
place  the  association  under  an  international  trusteeship  in  this  re- 
spect which  the  United  States  might  or  might  not  in  its  discretion 
cause  to  be  observed,  the  proper  course  to  pursue  evidently  was  for 
the  association  to  make  a  declaration  of  international  trusteeship, 
and  for  the  United  States  to  make  a  response  approving  on  grounds 
of  humanity  the  declaration  of  international  trusteeship  made  by  the 
association,  and  recognizing  its  flag  as  the  flag  of  a  friendly  govern- 
ment.   This  was  accordingly  done. 

The  declaration  of  the  International  Congo  Association  was  as  fol- 
lows: 

The  International  Association  of  the  Congo  hereby  declares  that  by  treaties 
concluded  ^^ith  the  legitimate  sovereigns  in  the  basins  of  the  Congo  and  of  the 
Niadi-Kialun  and  in  the  adjacent  territories  upon  the  Atlantic,  there  has  been 
ceded  to  it  territory  for  the  use  and  benefit  of  the  free  States,  established  and 
being  established  under  the  care  and  supervision  (sous  la  protection  et  la  surveil- 
lance) of  the  said  association  in  the  said  basins  and  adjacent  territories,  to 
which  cession  the  said  free  States  of  right  succeed ; 

That  the  said  International  Association  has  adopted  for  itself  and  for  the 
said  free  States  the  flag  of  the  International  African  Association,  being  a  blue 
flag  with  a  golden  star  in  the  center ; 


THE  QUESTION   OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       139 

That  tlie  said  association  and  tlie  said  States  have  resolved  to  levy  no  custom- 
house duties  upon  goods  or  articles  of  merchandise  imported  into  their  ter- 
ritories or  brought  by  the  route  which  has  been  constructed  around  the  Congo 
cataracts ;  this  they  have  done  with  a  view  of  enabling  commerce  to  penetrate 
into  equatorial  Africa ; 

That  they  guarantee  to  foreigners  settling  on  their  territories  the  right  to 
purchase,  sell,  or  lease  lands  and  buildings  situated  therein,  to  establish  com- 
mercial houses,  and  to  there  carry  on  trade  upon  the  sole  condition  that  they 
shall  obey  the  laws.  They  pledge  themselves,  moreover,  never  to  grant  to  the 
citizens  of  one  nation  any  advantages  without  immediately  extending  the  same 
to  the  citizens  of  all  other  nations,  and  to  do  all  in  their  power  to  prevent  the 
slave  trade. 

To  this  declaration  the  United  States,  by  the  Secretary  of  State 
(Mr.  Frelinghuysen),  acting  in  the  name  of  the  President  and  "  pur- 
suant to  the  advice  and  consent  of  the  Senate  heretofore  given,"  re- 
sponded, acknowledging  receipt  of  the  declaration,  and  on  its  part 
declared : 

That  in  harmony  with  the  traditional  policy  of  the  United  States,  which 
enjoins  a  proper  regard  for  the  commercial  interests  of  their  citizens  while  at 
the  same  time  avoiding  interference  with  controversies  between  other  powers 
as  well  as  alliances  with  foreign  nations,  the  Government  of  the  United  States 
announces  its  sympathy  with  and  approval  of  the  humane  and  benevolent  pur- 
poses of  the  International  Association  of  the  Congo,  administering,  as  it  does,  the 
interests  of  the  free  States  there  established,  and  will  order  the  officers  of  the 
United  States,  both  on  land  and  sea,  to  recognize  the  flag  of  the  International 
African  Association  as  the  flag  of  a  friendly  Government. 

(Report  of  the  Secretary  of  State  on  the  Independent  State  of  the 
Congo,  188G,  p.  260.) 

The  news  that  France  was  preparing  to  claim  a  part  of  the  Congo 
Basin  was  published  in  the  morning  newspapers  of  April  22,  1884. 
The  Senate  immediately  met  in  executive  session  and  released  for 
publication  its  action  of  a  few  days  previously  approving  the  plan 
of  the  President  to  recognize  the  International  Congo  Association. 
That  afternoon  the  recognition  of  the  United  States  occurred  as  above 
stated.  On  the  next  day — April  23 — the  association  made  an  arrange- 
ment with  France  giving  it  the  right  of  preemption  in  case  it  should 
ever  sell  its  rights,  and  receiving  in  return  the  virtual  recognition  by 
France  of  the  association  as  a  State,  subject  to  a  future  settlement 
of  the  French  claims  in  the  Congo  Basin.  In  making  this  arrange- 
ment the  association  declared  as  follows  in  a  letter  addressed  by  its 
President  to  the  French  minister  of  foreign  aif airs : 

The  International  Association  of  the  Congo,  in  the  name  of  the  stations  and 
territories  which  it  has  founded  on  the  Congo  and  in  the  valley  of  the  Niadi- 
Quillon,  declares  formally  that  it  will  not  cede  them  to  any  other  power,  under 
reserve  of  particular  treaties  which  may  be  concluded  between  France  and  the 
association  for  the  purpose  of  fixing  the  limits  and  conditions  of  their  respec- 
tive actions.  Nevertheless  the  association,  desiring  to  give  a  new  proof  of  its 
friendly  sentiments  toward  France,  binds  itself  to  give  it  the  right  of  prefer- 


140        THE   QUESTION    OF   ABORIGINES   IN    THE   LAW   OF    NATIONS.      • 

eiice  if,  through  unforeseen  circumstances,  the  association  should  be  inclined 
at  any  time  hereafter  to  realize  upon  its  possessions. 

The  French  minister  of  foreign  affairs  (M.  Ferry)  in  reply,  on 
April  24,  1884,  said : 

I  have  the  honor  of  acknowledging  receipt  of  the  letter,  dated  the  23d  instant, 
by  which,  in  your  capacity  as  president  of  the  International  Association  of  the 
Congo,  you  transmit  to  me  assurances  and  guarantees  destined  to  consolidate 
our  relations  of  cordiality  and  of  good  neighborhood  in  the  region  of  the  Congo. 
I  take  note  of  these  declarations  with  great  satisfaction,  and,  in  return,  I 
have  the  honor  of  informing  you  that  the  French  Government  engages  itself  to 
respect  the  stations  and  free  territories  of  the  association  and  to  place  no  ob- 
stacle In  the  way  of  the  exercise  of  its  rights. 

{Fonnation  et  C 07istitutwn  Politique  de  VEtat  IndepeJidant  dn 
Congo^  by  Georges  Blanchard,  Paris,  1899,  pp.  366,  367,  French  Yel- 
low Book  on  the  affairs  of  the  Congo,  1884.) 

This  arrangement  was  notified  to  the  powers  by  circular  of  May 
31,1884. 

The  Berlin  African  Conference  assembled  November  15, 1884.  The 
European  powers  seem  to  have  rejected  unanimously  the  claim  of  the 
International  Congo  Association  to  be  a  federalizing  agency  for  the 
"  free  States,"  which  were,  in  fact,  aboriginal  tribes.  Possibly  the 
unfortunate  results  which  had  flowed  from  the  attempted  "  confed- 
eration "  of  the  Maori  Tribes  in  New  Zealand  under  the  influence  of 
the  British  reformers  of  1840,  may  have  had  its  effect. 

It  appears,  however,  that  so  late  as  November  23,  1884,  the  idea  of 
a  confederation  of  free  States  of  the  Congo  was  still  talked  of  in 
some  quarters,  but  that  the  "  States  "  then  referred  to  were  not  the 
aboriginal  tribes,  but  administrative  districts,  to  be  instituted  in  the 
Congo  region  as  Provinces.  In  a  letter  from  Mr.  Tisdel  to  Secretary 
of  State  Frelinghuysen,  of  November  23.  1884,  when  the  Berlin 
African  Conference  was  in  session  (Report  of  the  Secretary  of  State 
on  the  Independent  State  of  the  Congo,  1886,  p.  352),  it  is  said: 

It  is  the  purpose  of  the  association  to  establish  a  political  government  and 
administration  under  the  name  of  the  "  Free  States  of  the  Congo,"  the  consti- 
tution of  which  I  have  reason  to  know  has  been  prepared  with  the  help  of 
eminent  jurists,  and  will,  in  all  probability,  be  laid  before  the  conference  in 
Berlin  before  the  sittings  will  have  ended.  This  constitution  appears  to  be 
leased  mainly  upon  the  Bi-itish  colonial  system,  dividing  the  country  into  three 
States  or  Provinces  under  a  governor  general,  himself  dependent  upon  the 
executive. 

In  the  same  letter,  however.  Mr.  Tisdel  inclosed  a  "  Manifesto  of 
the  International  Association"  {Ih.  p.  356)  in  which  the  association 
assumed  that  by  international  recognition  it  had  become  a  '*  new 
State."  There  is  only  one  reference  to  the  relation  of  "  States  "  to 
the  association.     It  is  said  : 

With  regard  to  the  question  how  it  is  proposed  to  govern  the  Congo  States, 
the  legislation  of  the  Congo  territory,  subject  to  the  supervision  and  control  of 


THE  QUESTION   OF  ABORIGINES  IN   THE  LAW  OF   NATIONS.       141 

the  association,  shall  be  based  upon  the  principles  of  law  recognized  by  civilized 
nations  and  upon  the  philanthropic  principles  set  forth  in  the  well-known  plan 
of  the  association,  whose  aim  is  to  civilize  Africa  by  encouragement  given  to 
legitimate  trade. 

It  would,  therefore,  appear  evident  that  already  in  November, 
1884,  and  doubtless  before  the  opening  of  the  conference  on  the  loth 
of  that  month,  the  plan  for  regarding  the  aboriginal  tribes  as  "  free 
States"  and  the  association  as  a  kind  of  federalizing  and  directing 
bond  between  these  aboriginal  free  States  had  been  concluded  to  be 
contrary  to  "  the  principles  of  law  recognized  by  civilized  nations," 
and  not  essential  to  the  carrying  out  of  "  philanthropic  principles." 

In  this  respect  the  European  nations  doubtless  acted  according  to 
the  principles  of  the  law  of  nations,  as  evolved  by  their  own  practice 
and  also  by  the  j)ractice  of  the  United  States  with  respect  to  the 
Indian  tribes. 

On  November  8,  1884,  a  week  before  the  Berlin  African  Conter- 
ence  assembled,  Germany  made  a  treaty  with  the  International 
Congo  Association  recognizing  it  as  a  unitary  State,  and  on  Decem- 
ber 16,  while  the  conference  was  in  session.  Great  Britain  made  a 
declaration  of  recognition  and  also  entered  into  a  commercial  treaty 
with  the  association.  The  form  of  recognition  given  by  Great 
Britain  was  externally  the  same  as  had  been  followed  by  the  United 
States — a  declaration  by  the  association  of  the  character  of  its  or- 
ganization, its  humane  objects,  and  the  obligations  of  international 
trusteeship  assumed  by  it,  and  a  declaration  of  approval  and  recog- 
nition of  Great  Britain.  The  statement  of  the  form  of  organization 
of  the  association  in  its  two  declarations,  however,  differed  mate- 
rially. In  the  declaration  made  to  the  United  States  it  was  said: 
The  International  Association  of  the  Congo  declares  that  by  treaties  with  the 
legitimate  sovereigns  in  the  basin  of  the  Congo,  and  that  of  the  Niadi-Kialun, 
and  in  the  adjacent  territories  upon  the  Atlantic,  there  has  been  ceded  to  it  ter- 
ritory for  the  use  and  benefit  of  free  States  established  and  being  established 
under  the  care  and  supervision  of  the  said  association  in  said  basins  and  adja- 
cent territories,  to  which  cession  the  said  free  States  of  right  succeed. 

In  the  declaration  made  to  Great  Britain  it  was  said : 
The  International  Association  of  the  Congo,  founded  by  His  Majesty  the  King 
of  the  Belgians  for  the  purpose  of  promoting  the  civilization  and  commerce  of 
Africa,   and   for  other  humane   and  benevolent  purposes,   hereby   declares   as 
follows : 

1.  That  by  the  treaties  with  the  legitimate  sovereigns  in  the  basin  of  the 
Congo,  and  that  of  the  Niadi-Kialun,  and  in  adjacent  territories  upon  the  At- 
lantic, there  has  been  ceded  to  it  territory  for  the  use  and  benefit  of  free  States 
established  and  being  established  in  the  said  basins  and  adjacent  territories. 

2.  That  by  virtue  of  said  treaties  the  management  of  the  interests  of  the  said 
free  States  is  vested  in  the  association. 

(Report  of  the  Secretary  of  State  on  the  Independent  State  of  the 
Congo,  1886,  p.  261.) 


142        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF    NATIONS. 

The  declaration  to  the  United  States,  asserting  that  the  free 
States  "  of  right  succeed  "  to  the  rights  of  the  association,  was  a  claim 
of  temporary  trusteeship  for  the  free  States.  The  declaration  to 
Great  Britain,  asserting  that  the  free  States  had  by  treaties  "  vested '' 
in  the  association  "the  management  of  the  interests  of  the  said  free 
States"  was  a  claim  of  sovereignty,  and  was  broad  enough  to  be, 
interpreted  as  a  claim  that  the  association  was  the  sole  sovereign,  the 
"  free  States,"  being  under  its  guardianship  as  aboriginal  tribes. 

All  the  other  European  States,  in  the  treaties  of  recognition  and 
commerce  concluded  with  the  association  while  the  conference  was  in 
session  (collected  in  the  report  of  the  Secretary  of  State  on  the  Inde- 
pendent State  of  the  Congo  of  1886,  pp.  260-275),  dealt  directly  with 
the  association  as  the  sovereign  of  the  Congo  territory  as  a  unitary 
State. 

The  International  Association  of  the  Congo  made  its  first  com- 
munication to  the  conference  on  February  23,  1885,  the  day  upon 
which  the  conference  agreed  to  the  terms  of  the  final  act  and  three 
days  before  the  conference  closed  its  labors.  On  that  day  the  pre- 
siding officer  of  the  conference  read  a  letter  addressed  by  the  presi- 
dent of  the  association  to  Prince  Bismarck  as  the  president  of  the 
conference,  notifying  the  conference  that  all  the  powers  participat- 
ing in  it,  except  Turkey,  had  by  separate  and  individual  treaties  rec- 
ognized the  flag  of  the  association  as  that  of  "  a  State  or  a  friendly 
government."  The  letter  expressed  the  hope  that  the  conference 
"  would  consider  the  advent  of  a  power  which  takes  upon  itself  the 
exclusive  mission  of  introducing  civilization  and  commerce  into  the 
center  of  Africa  as  a  further  assurance  of  the  benefits  which  its  im- 
portant labors  are  destined  to  produce." 

Referring  to  this  letter,  Baron  de  Courcel,  the  representative  of 
France,  spoke  of  the  association  as  VEtat  du  Congo — the  Congo 
State.  Sir  Edward  Malet,  the  representative  of  Great  Britain,  spoke 
of  it  as  ce  nouvel  Etat — ^this  new  State.  The  representatives  of 
Portugal,  Italy,  Spain,  Denmark,  and  Sweden  and  Norway  also 
spoke  of  it  as  "  the  Congo  State  "  o^  the  "  new  State." 
^  The  association  did  not,  however,  adopt  the  name  of  the  Inde- 
pendent State  of  the  Congo  but,  with  the  assent  of  the  conference,, 
adhered  to  the  final  act  on  the  last  day,  February  26,  1885,  by  the 
name  of  the  International  Association  of  the  Congo.  Prince  Bis- 
marck, responding  to  the  letter  from  the  president  of  the  association, 
which  was  then  read  to  the  conference,  announcing  its  adherence  to 
the  final  act,  said : 

I  believe  I  express  tlie  views  of  the  conference  when  I  acknowledge, with  satis- 
faction the  step  taken  by  the  International  Association  of  the  Congo  and  ac- 
knowledge their  adherence  to  our  decisions.  The  new  Congo  State  is  called 
upon  to  become  one  of  the  chief  protectors  of  the  work  which  we  have  in  view,. 


THE  QUESTION   OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       143i 

I  trust  it  may  have  a  prosperous  development  and  that  the  noble  aspirations 
of  its  illustrious  founder  may  be  fulfilled,     (lb.,  p.  296.) 

The  Berlin  African  conference,  therefore,  had  nothing  to  do  with 
the  institution  of  the  Independent  State  of  the  Congo  except,  as  one 
may  say,  to  register  in  the  most  formal  way  the  fact  of  its  "  advent  '^ 
into  the  society  of  nations;  the  existence  of  the  State  being  due  it  its; 
own  acts  in  acquiring  sovereignty  in  middle  Africa  and  to  the  sepa- 
rate acts  of  recognition  of  the  civilized  States  which  were  the  mem- 
bers of  the  conference. 

In  the  summer  of  1885  King  Leopold,  who  had  been  the  president  of 
the  International  Congo  Association,  became  president  of  the  new 
State,  which  took  the  name  of  the  Independent  State  of  the  Congo ; 
its  relationship  with  Belgium  being  declared  to  be  a  personal  one,  both 
States  having  the  same  monarch  but  having  no  other  relationship. 

■  President  Cleveland  on  September  11, 1885,  wrote  to  King  Leopold 
as  follows : 

I  have  had  much  pleasure  in  receiving  your  Majesty's  letter  of  the  1st  of 
August  last,  announcing  that  the  possessions  of  the  International  Association  of 
the  Congo  will  henceforth  form  the  Independent  State  of  the  Congo  and  that 
your  Majesty,  under  the  authorization  of  the  Belgian  Legislative  Chambers  and 
in  accord  with  the  association,  has  assumed  the  title  of  Sovereign  of  the  Inde- 
pendent State  of  the  Congo.  I  observe  your  INIajesty's  further  statement  that  the^ 
convention  between  Belgium  and  the  new  State  is  exclusively  personal.  This 
Government  at  the  outset  testified  its  lively  interest  in  the  well-being  and  future 
progress  of  the  vast  region  now  committed  to  your  Majesty's  wise  care  by  being 
first  among  the  powers  to  recognize  the  flag  of  the  International  Association- 
of  the  Congo  as  that  of  a  friendly  State;  and  now  that  the  progress  of  events 
lias  brought  with  it  the  general  recognition  of  the  jurisdiction  of  the  associa- 
tion and  opened  the  way  for  its  incorporation  as  an  independent  and  sovereign 
State,  I  have  great  satisfaction  in  congratulating  your  Majesty  on  being  called 
to  the  chief  magistracy  of  the  newly  formed  Government.  The  Government  of 
the  United  States,  whose  only  concern  lies  in  watching  with  benevolent  expecta- 
tion the  growth  of  prosperity  and  peace  among  the  communities  to  whom  they 
are  joined  by  ties  of  friendship,  can  not  doubt  that  under  your  Majesty's  good 
government  the  peoples  of  the  Congo  Basin  will  advance  in  the  paths  of  civiliza- 
tion and  deserve  the  good  will  of  all  those  States  and  peoples  who  may  be  brought 
into  contact  with  them. 

(Report  of  the  Secretary  of  State  on  the  Independent  State  of  the  Congo,  1886,, 
p.  331.) 

On  the  same  day  Secretary  of  State  Bayard  Avrote  to  M.  van 
Eetvelde.  administrator  general  of  the  Independent  State  of  th& 
Kongo,  declining  to  take  action  on  the  note  of  the  Congo  State- 
announcing  its  assumption  of  a  status  of  permanent  neutrality 
under  the  provisions  of  the  final  act  of  the  Berlin  African  Confer- 
ence, on  the  ground  that  the  United  States  had  not  ratified  the 
signature  of  its  plenipotentiary  to  that  conference.  Secretary  Bay- 
ard's letter  concluded  thus: 

The  relationship  of  cordial  recognition  and  earnest  good  will  heretofore 
initiated  by  the  Government  of  the  United  States  toward  the  Internationals 


144        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF   NATIONS. 

Association  of  the  Congo,  and  now  confirmed  and,  I  trust,  perpetuated  in 
respect  of  the  new  independent  State,  is,  however,  complete  in  itself  and 
apart  from  any  conventional  relationship  flowing  from  or  defined  hy  the 
general  act  of  the  Conference  of  Berlin;  and  the  obligation  to  respect  the 
precepts  of  neutrality  and  friendly  intercourse  is  held  by  the  Government 
of  the  United  States  to  be  as  perfect  toward  the  Sovereign  and  Independent 
State  of  the  Congo  as  toward  any  and  all  sovereignties  with  which  the  United 
States  maintain  friendship  and  intercourse. 

The  Independent  State  of  the  Congo,  on  July  1,  1885,  forbade  to 
the  civilized  inhabitants  the  making  of  contracts  with  the  aborigines 
for  the  purchase  of  lands  without  the  consent  of  a  duly  authorized 
officer  of  the  State  and  declared  all  "  vacant  lands  "  to  be  the  prop- 
erty of  the  State;  applying  the  established  principles  of  the  law  of 
nations  as  the  guardian  of  the  aborigines.  (/&.,  p.  402.)  In  all  its 
subsequent  administration  of  its  territory  in  Africa,  it  assumed  to  act 
on  the  same  principles  as  other  European  States ;  recognizing  itself 
as  bound  by  the  final  act  of  the  Berlin  African  conference,  in  the 
same  manner  as  the  other  States  having  possessions  in  the  conven- 
tional basin  of  the  Congo. 

The  institution  of  the  International  African  Association  and  of  the 
International  Congo  Association  undoubtedly  stimulated  public  in- 
terest in  the  relations  of  civilized  States  to  aboriginal  peoples  and 
made  possible  the  remarkable  development  in  the  law  of  nations  on 
this  subject  which  occurred  through  the  work  of  the  Berlin  African 
Conference.  The  covenants  running  with  the  land  which  the  United 
States  desired,  and  which  it  endeavored  to  initiate  through  agree- 
ments of  recognition,  were,  in  fact,  made  real  by  the  action  of 
that  conference  and  by  the  adherence  of  the  International  Congo 
Association  to  the  final  act.  The  effect  of  the  declaration  of  inter- 
national trusteeship  made  by  the  International  Congo  Association 
to  the  United  States,  preliminary  to  the  recognition  of  its  sovereignty 
by  the  United  States,  as  a  declaration  running  with  the  land  and 
binding  Belgium,  the  present  successor  of  the  association,  is  doubtful. 
The  obligations  of  international  trusteeship  and  of  guardianship  of 
aborigines  established  by  the  final  act  of  the  Berlin  African  Con- 
ference are,  however,  of  course,  in  effect  as  respects  all  the  signatory 
and  adherent  powers  and  their  successors;  and  the  adhesion  of  the 
association  to  that  act  binds  Belgium  as  its  successor. 


CHAPTER  XI. 

THE  INSTITUTION  BY  THE  BERLIN  AFRICAN  CONFERENCE  OF  A  MIDDLE- 
AFRICAN  ZONE  OF  IN,TERNATIONAL  JURISDICTION  AND  THE  EFFECT  OF 
THIS  ACTION  ON  THE  LAW  OF  NATIONS  REGARDING  ABORIGINES. 

The  project  to  "  create  a  great  State  in  the  heart  of  western  Africa, 
whose  organization  and  administration  shall  afford  a  guarantee  that 
it  is  to  be  held,  for  all  time,  as  it  were  in  trust  for  all  peoples,"  which 
the  United  States  had  supported  and  which  it  had  hoped  would  be 
realized  by  the  Berlin  African  Conference  was,  in  substance,  realized 
by  the  action  of  the  conference. 

The  conference  did  not  "  create  a  great  State  in  the  heart  of  western 
Africa,"  although  during  the  time  that  its  sessions  were  going  on 
such  a  State — the  Independent  State  of  the  Congo — came  into  ex- 
istence by  the  separate  acts  of  recognition  of  twelve  of  the  Euro- 
pean States,  in  addition  to  the  acts  of  recognition  of  the  United 
States  and  Germany,  which  occurred  before  the  conference  opened. 

But  the  conference,  though  it  did  not  create  a  State,  created  a 
political  and  territorial  institution  affecting  territory  greater  in  ex- 
tent than  that  described  as  "  the  heart  of  western  Africa,"  and  hav- 
ing in  some  respects  the  character  or,  at  least,  the  possibilities  of  a 
"  great  State  "  administering  a  "  trust  for  all  peoples." 

The  first  step  taken  by  the  conference  in  this  respect  was  the  estab- 
lishment of  a  "  conventional  basin  of  the  Congo,"  which  was  in 
fact  all  middle  Africa  from  ocean  to  ocean,  including  substantially 
all  the  country  between  the  Sahara  Desert  on  the  north  and  the 
rivers  forming  the  northern  boundary  of  what  has  since  become 
South  Africa. 

Over  this  middle  African  zone  the  conference  assumed  what  came 
very  near  to  being  an  international  over-sovereignty,  supreme  over 
the  sovereignties  exercised  by  the  States  having  colonies  in  the  zone. 
It  decreed  a  regime  in  the  nature  of  a  supreme  law  of  the  land  for 
the  region,  which  the  States  having  colonies  in  the  region  obli- 
gated themselves  to  follow,  but  which  none  of  the  States  participat- 
ing in  the  conference  obligated  itself  to  enforce.  The  zone  estab- 
lished seems  fairly  to  be  described  as  one  of  international  jurisdiction, 
since  the  congress  was  participated  in  by  powers  having  no  colonies  in 
the  region  as  well  as  by  those  having  colonies  there,  and  was  open 
to  the  adhesion  of  all  other  powers. 

89581—19 10  145 


146        THE   QUESTION    OF   ABORIGINES  IN    THE   LAW   OF   NATIONS. 

As  a  res'ilt  of  the  regime  thus  established  as  the  supreme  law  of 
the  land  for  this  vast  region  by  the  assembled  powers  in  the  exercise 
of  an  international  jurisdiction,  the  principles  on  which  the  United 
States  insisted — of  guardianship  of  aborigines  and  the  open  door  to 
the  commerce  and  intercourse  of  civilized  persons — were  assured. 

Fourteen  States  were  represented  in  the  Berlin  African  Con- 
ference, namely,  Germany,  Great  Britain,  France,  the  United  States, 
Russia,  Spain,  Austria-Hungary,  Italy,  Holland,  Portugal,  Belgium, 
Denmark,  Sweden  and  Norway,  and  Turkey. 

The  program  of  the  conference,  as  determined  in  advance,  was 
limited  to  the  establishment  of  an  international  agreement  on  three 
subjects : 

1.  Freedom  of  commerce  in  the  l:>nsin  and  mouths  of  the  Congo. 

2.  Application  to  the  Congo  and  the  Niger  of  the  principles  adopted  by  the 
Vienna  Congress  with  a  view  to  sanctioning  free  navigation  on  several  inter- 
national rivers,  uhich  pi-inciples  were  afterwards  applied  to  the  Danube. 

3.  Definition  of  the  formalities  to  be  observed  in  order  that. new  occupations 
on  the  coast  of  Africa  may  be  considered  effective.  (Report  of  the  Secretary 
of  State  on  the  Independent  State  of  the  Congo,  1886,  p.  1.) 

In  the  discussion  of  the  first  tw^o  points,  involving  the  question  of 
"  the  open  door  "  for  middle  Africa,  the  question  arose  concerning  the 
nature  and  extent  of  territory  to  which  it  was  possible  to  apply  such 
an  international  political  and  economic  regime.  It  was  evident,  as 
soojk  as  the  question  was  examined,  that  such  a  regime  cuuld  be  effec- 
tively applied  only  to  a  territory  which  constituted  a  political,  eco- 
nomic, and  ethnic  unit.  The  geographical  basin  of  the  Congo,  when 
examined  b}^  the  confeience,  after  hearing  the  explanations  of  Stan- 
ley, was  found  to  be  a  region  of  irregular  and  complicated  boundaries, 
having  neither  a  political,  an  economic,  or  an  ethnic  unity.  The  com- 
mercial api^roach  to  the  Congo  Basin  at  that  time  was  from  the  In- 
dian Ocean,  to  w^hich  the  geographical  basin  of  the  Congo  did  not 
extend.  The  negro  race  was  aboriginal  throughout  a  territory  far 
more  extensive  than  the  geographical  basin.  The  claims  of  the 
civilized  States  were  certain  to  include  the  whole  region  inhabited 
by  the  negroes,  and  the  territorial  boundaries  of  their  respective 
jurisdictions  would  doubtless  take  no  heed  of  the  geographical 
boundaries  of  the  Congo  Basin. 

In  order  to  find  the  necessary  geographical,  political,  economic,  and 
ethnic  unit  to  place  under  the  proposed  international  regime,  it  was 
necessary  to  take  in  other  territory  than  the  geographical  basin  of  the 
Congo.  As  the  conference  was  called  to  discuss  the  freedom  of  com- 
merce in  the  basin  of  the  Congo,  it  fulfilled  its  mandate  by  agreeing 
upon  a  "  conventional  basin  of  the  Congo  "  to  which  the  international 
regime  should  apply. 


THE  QUESTION   OF  ABORIGINES  IN  THE  LAW  OF   NATIONS.       147 

Mr.  Stanley  proposed  a  plan  for  joining  to  the  geographical  basin 
of  the  Congo  the  territory  on  the  Atlantic  coast  north  and  south  of 
the  Congo  for  a  distance  of  about  300  miles,  and  also  all  the  territory 
between  the  geographical  basin  of  the  Congo  and  the  Indian  Ocean, 
taking  in  the  great  lakes  on  the  north  and  extending  south  as  far 
as  the  Zambesi  River ;  that  is,  from  the  French  and  English  spheres 
of  sovereignty  and  influence  on  the  north  to  the  English  and  Portu- 
guese spheres  of  sovereignty  and  influence  on  the  south. 

This  region  was  accepted  by  the  conference  as  the  region  to  be 
subjected  to  the  international  regime  determined  by  the  conference, 
in  so  far  as  it  should  be  or  come  under  the  sovereignty  of  any  of  the 
States  signatory  of  or  adhering  to  the  final  act  of  the  conference. 
This  region,  though  already  to  some  extent  parceled  out  among  the 
civilized  States  and  the  International  African  Association  and  its 
successors,  and  certain  to  be  completely  parceled  out  in  the  near 
future,  was  nevertheless  to  have  an  international  character  as  a  kind 
of  international  reservation  in  which  the  aborigines  should  be  treated 
justly  and  all  civilized  States  should  enjoy  equality  of  opportunity. 

Xhe  program  of  the  conference  made  no  special  reference  to  a  con- 
sideration of  the  law  of  nations  regarding  the  relations  between 
civilized  States  and  aboriginal  tribes;  but  the  conference  was  evi- 
dently unanimous  in  agreeing  that  the  first  topic  of  the  conference, 
"  freedom  of  commerce  in  the  basin  and  mouths  of  the  Congo," 
involved  the  whole  question  of  the  relations  of  the  colonizing  States 
to  the  aborigines.  Evidently  there  can  be  no  "  freedom  of  com- 
merce "  in  a  country  inhabited  by  aboriginal  tribes  unless  these  tribes 
are  given  their  proper  and  just  relationship  to  the  civilized  govern- 
ments nnd  their  citizens,  and  peace  and  order  prevails.  The  ques- 
tion of  the  relations  with  the  aborigines  was  therefore  considered  in 
the  course  of  the  deliberations  of  the  conference  on  the  freedom  of 
commerce. 

Provisions  insuring  equality  of  opportunity  in  the  reservation  to 
all  civilized  States  and  their  citizens  were  agreed  upon,  as  follows: 

Article  II.  All  flags,  without  distinction  6f  nationality,  shall  have  free  access 
to  the  whole  of  the  coast  line  of  the  territories  above  enumerated,  to  the  rivers 
there  running  into  the  sea,  to  all  the  waters  of  the  Congo  and  its  affluents, 
including  the  lakes,  and  to  all  the  ports  situated  on  the  banks  of  these  waters, 
as  well  as  to  canals  that  may  in  future  be  constructed  with  intent  to  unite  the 
water  courses  or  lakes  within  the  entire  area  of  the  territories  described 
in  Article  I.  Those  trading  under  such  flags  may  engage  in  all  sorts  of  trans- 
portation and  carry  on  the  coasting  trade  by  sea  and  river,  as  well  as  boat 
trafllc,  on  the  same  footing  as  if  they  were  subjects. 

Article  III.  Goods,  of  whatever  origin,  imported  into  these  regions,  -  under 
whatsoever  flag,  by  sea  or  river  or  overland,  shall  ^be  subject  to  no  other  taxes 
than  such  as  may  be  levied  as  fair  compensation  for  expenditures  in  the  interest 
of  trade,  which,  for  this  reason,  must  be  equally  borne  by  subjects  and  by 


148        THE   QUESTION    OF   ABORIGINES   IN    THE   LAW   OF    NATIONS. 

foreigners  of  all  nationalities.  All^  discriminating  duties  on  vessels,  as  well  as 
on  merchandise,  are  forbidden. 

Article  IV.  Merchandise  imported  into  those  regions  shall  be  exempt  from 
import  and  transit  duties.  The  powers  reserve  to  themselves  to  determine, 
after  a  lapse  of  20  years,  whether  this  exemption  shall  be  maintained  or  not. 

Article  V.  No  power  that  exercises  or  that  shall  hereafter  exercise  sovereign 
rights  in  the  above-mentioned  regions  shall  be  allowed  to  grant  therein  a 
monopoly  or  favor  of  any  kind  in  matters  of  trade.  Foreigners,  without 
distinction,  shall  enjoy  the  same  usage  and  rights  as  subjects  as  regards  the 
protection  of  their  persons  and  possessions,  the  purchase  and  sale  of  property, 
personal  and  real,  and  the  exercise  of  their  vocations.     *     *     * 

Article  YII.  The  Convention  of  the  Universal  Postal  Union,  as  revised  at 
Paris,  June  1,  1878,  shall  be  extended  in  its  operation  to  the  Conventional  Basin 
of  the  Congo.  The  powers  which  therein  do  or  shall  exercise  rights  of  sover- 
eignty or  protectorate  engage,  as  soon  as  circumstances  permit,  to  take  the 
measure?  necessary  for  carrying  out  the  preceding  provision.     (lb.,  pp.  208,  209.) 

In  the  opening  address  of  Prince  Bismarck  at  the  first  session  the 
first  words  were  as  follows: 

In  extending  its  invitations  to  this  conference  the  Imperial  Government  was 
guided  by  the  conviction  that  all  the  Governments  shared  the  desire  to  pro- 
mote the  civilization  of  the  natives  of  Africa  by  opening  the  interior  of  that 
continent  to  commerce,  by  furnishing  the  means  of  instruction  to  its  inhabitants, 
by  encouraging  missions  and  enterprises  calculated  to  diffuse  useful  knowledge, 
and  by  preparing  the  way  to  the  abolition  of  slavery,  and  especially  of  the 
slave  trade,  the  gradual  abolition  of  which  was  proclaimed  by  the  Congress  of 
1815  as  a  sacred  duty  of  all  the  powers. 

The  interest  taken  by  all  civilized  nations  in  the  material  development  of 
Africa  assures  us  of  their  cooperation  in  the  task  of  regulating  commercial 
relations  with  that  part  of  the  world. 

The  r§gime  which  has  been  observed  for  a  number  of  years  in  the  relations 
of  the  western  powers  with  the  countries  of  eastern  Asia  having  been  thus 
far  attended  with  the  most  favorable  results,  in  that  it  has  restricted  commer- 
cial rivalry  to  legitimate  competition,  tlie  Government  of  His  Majesty  the 
Emperor  of  Germany  has  thought  that  it  might  recommend  to  the  powers  to 
introduce  into  Africa,  in  a  form  suitable  to  that  continent,  the  same  regime, 
which  is  founded  upon  the  equality  of  the  rights  and  upon  the  solidarity  of  the 
interests  of  all  commercial  nations.  (Report  of  the  Secretary  of  State  on  the 
Independent  State  of  the  Congo,  1886,  p.  25.) 

In  the  draft  of  declaration  on  freedom  of  commerce  submitted  to 
the  conference  by  the  German  Government  at  the  first  session  one  of 
the  closing  articles  was  as  follows: 

All  powers  exercising  sovereign  rights  or  any  influence  in  the  said  territories 
shall  assume  the  obligation  to  take  part  in  the  abolition  of  slavery,  and  espe- 
cially in  that  of  the  slave  trade,  to  favor  and  assist  the  labors  of  missionaries 
and  to  encourage  all  institutions  calculated  to  educate  the  natives  and  to  teach 
them  to  understand  and  appreciate  the  benefits  of  civilization.     (lb.,  p.  31.) 

At  the  session  of  November  27  this  paragraph  was  approved  by 
the  conference  with  an  addition  proposed  by  Sir  Edward  Malet  (the 
plenipotentiary  for  Great  Britain)  whereby  the  powers  also  agreed 


THE  QUESTION   OF  ABORIGINES  IN   THE  LAW  OF  NATIONS.       149 

to  favor  and  aid  "  the  exercise  of  all  religions  without  distinction  of 
creed."  A  proposal  was  made  by  M.  de  Serpa,  a  delegate  of  Portugal, 
seconding  a  suggestion  of  Count  de  Launay,  plenipotentiary  for 
Italy,  to  add  to  the  article  a  declaration  against  the  importation  of 
spirituous  liquors  and  gunpowder  into  the  Congo  territory,  and  also 
against  "  the  importation  of  pillories,  lashes,  and  all  instruments  of 
torture,''  but  these  proposals  were  not  considered. 

The  matter  of  the  relations  with  the  aborigines  was  then  referred 
to  a  committee  on  editing,  of  which  Baron  de  Courcel,  plenipoten- 
tiar}^  for  France,  was  the  chairman  and  Baron  Lambermont,  pleni- 
potentiary for  Belgium,  the  reporter.  This  committee  formulated 
the  declaration  concerning  the  relations  w^ith  the  aborigines  sub- 
stantially as  it  now  appears  in  the  final  act,  which  is  as  follows 
(Arts.  6  and  9) : 

All  the  powers  exercising  sovereign  rights  or  influence  in  the  aforesaid 
territories  bind  themselves  to  watch  over  the  preservation  of  the  native  tribeg, 
and  to  care  for  the  improvement  of  the  conditions  of  their  moral  and  material 
well-being,  and  to  help  in  abolishing  slavery  and  especially  the  slave  trade. 
They  shall,  without  distinction  oF creed  or  nation,  protect  and  favor  all  relig- 
ious, scientific,  or  charitable  institutions  and  enterprises  created  and  organized 
for  the  above  ends,  or  designed  to  instruct  the  natives  and  to  bring  home  to 
them  the  blessings  of  civilization. 

Christian  missionaries,  scientists,  and  explorers,  with  their  escorts,  property, 
and  collections,  shall  likewise  receive  special  protection. 

Freedom  of  conscience  and  religious  toleration  are  expressly  guaranteed  to 
the  natives,  as  well  as  [to]  subjects  and  foreigners.  The  free  and  public  exer- 
cise of  all  forms  of  divine  worship,  and  the  right  to  build  edifices  for  religious 
pui*poses,  and  to  organize  religious  missions  belonging  to  all  creeds,  shall  not 
be  limited  or  fettered  in  any  way  whatsoever.     *     *     * 

Seeing  that  the  slave  trade  is  forbidden  according  to  the  principles  of  inter- 
national law  as  recognized  by  the  signatory  powers,  and  seeing  also  that  the 
operations  which,  by  sea  or  land,  furnish  slaves  to  the  trade,  are  likewise  to 
be  regarded  as  forbidden,  the  powers  which  do  or  shall  exercise  sovereign  rights 
or  influence  in  the  territories  forming  the  conventional  basin  of  the  Congo 
declare  that  those  territories  shall  not  serve  as  a  market  or  means  of  transit 
for  the  trade  in  slaves,  of  whatever  race  tJiey  may  be.  Each  of  the  powers 
binds  itself  to  employ  all  the  means  at  its  disposal  for  putting  an  end  to  this 
trade  and  for  punishing  those  who  engage  in  it.     {lb.,  pp.  290,  300.) 

The  committee,  in  reporting  these  provisions,  thus  commented 
upon  them : 

According  to  the  text,  as  according  to  the  observations  to  which  it  has  given 
rise  in  the  commission,  three  elements  are  distinguishable.  The  first  concerns 
protection  so  far  as  the  development,  material  and  moral,  of  the  indigenous 
populations  [is  concerned].  In  regard  to  these  populations,  which  for  the 
most  part  should,  without  doubt,  be  considered  as  finding  themselves  without 
the  community  of  the  law  of  nations,  but  who,  in  the  present  state  of  affairs, 
are  scarcely  qualified  to  defend  their  own  interests,  the  conference  has  thought 
proper  to  assume  the  rOle  of  official  guardian.  The  necessity  of  securing  the 
preservation  of  the  aborigines,  the  duty  to  aid  them  to  attain  a  higher  political 


150        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF    NATIONS. 

•  \ 

and  social  status,  the  obligation  to  instruct  and  initiate  them  into  the  advan- 
tages of  civilization  are  unanimously  recognized. 

It  is  the  future  of  Africa  which  is  here  at  issue.  No  dissent  manifested  itself, 
nor  could  manifest  itself,  in  this  respect  in  the  commission. 

Two  heavy  scourges  weigh  on  the  actual  condition  of  the  African  people  and 
paralyze  their  development — slavery  and.  the  slave  trade.  Everyone  knows — 
and  the  witness  of  Mr.  Stanley  has  but  confirmed  in  this  respect  an  accepted 
notion-^— what  deep  roots  slavery  has  in  the  constitution  of  the  African  societies. 
Certainly,  this  malevolent  institution  should  disappear;  it  is  the  condition  even 
of  all  pi'ogress,  economic  and  political ;  but  superintendence  [and]  changes  [in 
social  and  economic  conditions]  will  be  indispensable.  It  is  enough  to  indicate 
th'e  objects ;  the  local  governments  will  seek  the  means  and  adapt  them  to  the 
time  and  [circumstnnces].  The  trade  has  another  character;  it  is  the  [very] 
negation  of  all  law,  of  all  social  order.  The  hunting  of  men  is  a  crime  of 
treason  against  humanity.  It  should  be  repressed  wherever  it  [may]  be 
possible  to  extinguish  it,  on  land  as  on  sea.  Under  this  condition  the  com- 
mission has  *  *  *  prescribed  a  rigorous  obligation.  The  events  of  which 
the  Egyptian  Soudan  is  at  this  moment  the  theater,  the  scenes  of  which  Mr. 
Stanley  has  recently  been  witness  on  the  banks  of  the  upper  Congo,  the  abom- 
inable expeditions  which,  according  to  Dr.  Nachtigal,  are  frequently  organized 
in  the  central  Soudan,  and  which  penetrate  to  the  basin  of  the  Congo,  demand 
an  intervention  which  the  local  powers  will  be  compelled  to  face  as  a  pressing 
duty,  a  moral  mission.  But  the  sphere  of  action  of  these  powers  will  be  for  a 
long  time  yet  limited.  It  is  for  this  reason  that  the  commission  asks  them  to 
second  these  generous  and  civilizing  beginnings. 

Religion,  philanthropy,  science  may  send  missionaries,  who  will  receive  every 
protection  and  guaranty.  The  declaration  as  formulated  makes  no  exception 
of  creed  or  nationality ;  it  opens  the  field  to  all  devotions  and  covers  them  in- 
discriminately with  its  protection  and  patronage.    *    *    * 

[The]  last  paragraph  concerns  religious  liberty  of  conscience  and  religious 
toleration  for  the  aborigines,  [for  the  citizens  of  the  colonizing  States  and  for] 
foreigners.  No  restriction  shall  be  placed  on  the  free  and  public  exercise  of 
worship  or  on  the  right  to  erect  religious  edifices  or  organize  missions  belong- 
ing to  all  creeds.    *     *     * 

[Thus]  in  another  land  the  moral  and  material  conditions  of  the  existence 
of  the  indigenous  populations,  the  suppression  of  slavery,  and  above  all  the 
slave  trade,  [the  encouragement  of]  scientific  or  charitable  institutions,  mis- 
sionaries, scholars  [and]  explorers,  liberty  of  conscience,  and  religious  tol- 
eration are  the  objects  of  guaranties  which  correspond  to  the  most  elevated 
design  of  your  labors. 

(Report  of  the  Secretary  of  State  on  the  Independent  State  of  tlie  Congo, 
1886,  pp.  76,  77.) 

The  statement  that  "  the  conference  has  thought  proper  to  assume 
the  role  of  official  guardian"  of  the  aboriginal  tribes,  as  primitive 
societies  ''  without  the  community  of  nations  "  and  "  scarcely  qualified 
to  defend  their  own  interests,"  doubtless  meant  that  the  conference 
recognized  the  civilized  States  collectively  as  a  "  community  "  hold- 
ing to  the  aboriginal  tribes  a  relationship  of  overguardianship  or 
chancellorship ;  the  aboriginal  tribes,  as  ''  without  the  community  of 
the  law  of  nations"  being  subject  to  that  community  as  wards  are 
subject  to  the  chancellor, — the  direct  guardianship  being  exercised 


THE  QUESTION   OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       151 

by  the  States  exercising  sovereignty  over  the  region  inhabited  by 
the  tribes. 

The  extent  of  the  duties  of  guardianship  of  aborigines  recognized 
by  the  signatory  powers  was  by  the  language  used  in  the  final  act 
left  somewhat  indefinite.  By  Article  VI,  above  quoted,  the  powers 
exercising  sovereignty  or  influence  in  the  conventional  basin  of  the 
Congo  bound  themselves  "to  watch  over  the  preservation  of  the 
native  tribes,  and  to  care  for  the  improvement  of  the  conditions  of 
their  moral  and  material  well-being."  This,  however,  was  made 
somewhat  more  definite  by  the  words  of  the  preamble,  which  declared 
that  the  powers  participating  in  the  conference  were  "  desirous  to 
secure  the  means  of  furthering  the  moral  and  material  well-being  of 
the  native  population."  The  language  of  the  committee  in  the  report 
above  quoted,  however,  placed  upon  these  words  a  meaning  which 
clearly  imposed  upon  the  powers  exercising  sovereignty  or  influence 
in  the  conventional  basin  of  the  Congo  the  duty  of  training  the 
aborigines  for  civilization  by  the  direct  action  of  the  state.  This 
language  was  as  follows : 

The  necessity  of  securing  the  preservation  of  the  aborigines,  the  duty  to  aid 
them  to  attain  a  higher  political  and  social  status,  the  obligation  to  instruct 
and  initiate  them  into  the  advantages  of  civilization,  are  unanimously  recog- 
nized. It  is  the  future  of  Africa  which  is  here  at  issue.  No  dissent  manifested 
itself,  nor  could  manifest  itself,  in  this  respect  in  the  commisson.     (Id.,  p.  76.) 

The  action  of  the  conference  concerning  the  relation  of  civilized 
States  to  aboriginal  tribes  above  considered  was  all  that  directly  bore 
on  this  question.  From  the  omission  of  the  conference,  however,  to 
refer  to  treaties  with  aboriginal  tribes  in  the  articles  of  the  final  act 
relating  to  the  formalities  to  be  observed  in  order  to  make  new  occu- 
pations effective,  and  from  the  discussions  in  the  conference  regard- 
ing these  articles,  the  opinion  of  the  conference  on  the  effect  of  such 
treaties  under  the  law  of  nations  may  inferentially  be  ascertained. 

Articles  34  and  35  of  the  final  act  were  as  follows: 

Any  power  that  may  hereafter  take  possession  of  any  territory  on  the  coasts 
of  the  African  continent  outside  of  its  present  possessions,  or  that,  having  4iad 
none  up  to  that  time,  shall  acquire  any.  and  likewise  any  power  that  may  assume 
a  protectorate  there,  shall  accompany  the  Respective  act  with  a  notification 
thereof,  addressed  to  the  other  signatory  powers  of  the  present  act,  in  order 
to  enable  them,  if  need  be,  to  make  good  any  claims  of  their  own. 

The  signatory  powers  of  the  present  act  recognize  the  obligation  to  insure  the 
establishment  of  authority  in  the  regions  occupied  by  them  on  the  coasts  of  the 
African  continent  sufficient  to  protect  existing  rights,  and,  the  case  arising, 
freedom  of  trade  and  of  transit  on  the  conditions  that  may  have  been  agreed 
upon. 

There  being  no  reference  in  these  paragraphs  to  treaties  made  by 
the  colonizing  States  or  their  citizens  with  aboriginal  tribes,  the  in- 
ference is  neccssarv  that  the  conference  considered  that  such  treaties 


152        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF   NATIONS. 

had  no  effect  in  determining  the  right  of  a  State  to  exercise  sov- 
ereignty over  jthe  region  inhabited  by  the  tribes.  As  between  two 
or  more  civilized  States  disputing  the  sovereignty  over  a  given  terri- 
tory, possibly  treaties  with  the  aboriginal  tribes  might  be  used  in 
evidence  by  one  or  the  other  to  prove  the  fact  of  prior  occupation, 
but  it  was  settled  that  no  civilized  State  could  base  its  title  to  sover- 
eignty on  such  treaties,  or  insist,  against  another  State,  on  its  pro- 
ducing such  treaties,  as  the  source  of  its  right  to  sovereignty. 

The  ''  acquired  rights,"  w  hich  it  was  made  the  duty  of  the  occupy- 
ing State  to  respect,  were  not  intended  to  cover  the  rights  of  the 
aborigines.  The  question  was  raised  at  the  session  of  the  conference 
on  January  31,  1885,  when  the  declaration  was  being  considered. 
Mr.  Kasson,  the  plenipotentiary  for  the  United  States,  inquired  what 
was  meant  by  "  acquired  rights,"  and  it  was  answered  by  the  presid- 
ing officer  of  the  conference  and  agreed  by  the  delegates  that  the 
expression  '  acquired  rights '  comprised  "  all  the  acquired  rights  in 
existence  at  the  time  of  a  new  occupation,  whether  these  rights 
belonged  to  private  individuals  or  to  Governments."    (/&.,  p.  211.) 

Mr.  Kasson,  on  behalf  of  the  Uiiited  States,  stated  that  his  Gov- 
ernment approved  the  declaration  regarding  new  occupations  "  as 
a  first  step,  well  directed,  though  short,"  and  made  the  following 
"  observation,"  which  the  conference  ordered  to  be  recorded  as  a  part 
of  the  proceedings : 

Modern  international  law  follows  closely  a  line  wliich  leads  to  the  recognition 
of  the  rights  of  native  tribes  to  dispose  freely  of  themselves  and  of  their 
hereditary  territory.  In  conformity  with  this  principle,  my  Government  would 
gladly  adhere  to  a  more  extended  rule  to  be  based  on  a  principle  which  should 
aim  at  the  voluntary  consent  of  the  natives  whose  country  is  taken  possession 
of  in  all  cases  where  they  have  not  provoked  the  aggression. 

He  also  added  to  the  "  observation  "  a  statement  of  his  understand- 
ing that  the  conference  agreed  that  the  acts  prescribed  in  the  declara- 
tion were  "the  minimum  of  the  conditions  w^hich  must  necessarily 
be  fulfilled  in  order  that  the  recognition  of  an  occupation  may  be 
demanded." 

(Report  of  the  Secretary  o:^ State  on  the  Independent  State  of  the 
Congo,  1886,  p.  211.) 

The  Berlin  African  act  consisted  of  four  "  declarations,"  two  "  acts 
of  navigation,"  one  relating  to  the  Elver  Congo  and  the  other  to 
the  Eiver  Niger,  and  a  section  containing  the  "  general  dispositions  " 
relating  to  signature  and  ratification.  By  articles  13  and  26,  the 
principle  of  equality  of  treatment  in  the  navigation  of  each  of  these 
rivers,  for  all  nations,  without  any  exclusive  privilege  to  any,  was 
"  recognized  by  the  signatory  powers  as  forming  hereafter  a  part 
of  the  public  international  law."  The  declaration  relative  to  liberty 
of  commerce  in  the  conventional  basin  of  the  Congo  (in  which  was 


THE  QUESTION   OF  ABORIGINES  IN  THE  LAW  OF   NATIONS.       153 

included  the  declaration  regarding  the  guardianship  of  aborigines), 
was  regarded  by  the  conference  as  establishing  an  international 
covenant  of  a  permanent  nature,  running  with  the  land,  and  binding 
for  all  time  the  powers  exercising  sovereignty  in  the  conventional 
basin.  Doubtless  the  same  is  true  of  the  other  declarations,  but  in 
regard  to  this  one  the  conference  placed  itself  on  record. 

At  the  session  of  January  31,  1885,  it  was  stated  by  Sir  Edward 
Malet,  in  behalf  of  Great  Britain,  that  the  question  had  been  raised 
whether  the  provision  in  this  declaration  that  the  signatory  powers 
reserved  the  right  to  decide,  at  the  end  of  a  period  of  twenty  years, , 
whether  the  exemption  from  import  duties  should  be  maintained, 
implied  that  after  that  date  the  principle  of  equality  of  treatment 
and  freedom  of  commerce  on  the  rivers  and  in  the  conventional  basin 
of  the  Congo  might  be  abolished.  He  therefore  asked  that  the  con- 
ference set  this  doubt  at  rest.  The  unanimous  decision  of  the  confer- 
ence, voiced  by  Baron  de  Courcel,  as  chairman  of  the  committee,  was 
that  these  principles  were  intended  to  be  perpetual.    He  said: 

The  prohibition  of  discriminating  duties,  of  monopolies  or  privileges,  and 
of  all  inequality  of  treatment  to  the  prejudice  of  persons  belonging  to  a  foreign 
nationality,  is  affected  by  no  limitation  of  time.  The  good  which  results 
therefrom  should  be  considered  as  a  definitive  acquisition.  The  conference,  by 
inaugurating  such  a  state  of  things,  will  have  accomplished  n  work  which  in 
point  of  liberality  we  can  pronounce,  with  a  feeling  of  satisfaction,  to  have 
been  hitherto  unprecedented,     (i*.,  p.  213.) 

Mr.  Kasson,  in  a  letter  to  Secretary  of  State  Bayard,  dated  March 
16, 1885,  in  which  he  mentioned  the  various  and  complicated  questions 
considered  by  the  conference,  said  that  those  questions  had  been 
"  settled  for  all  time,  for  the  principles  go  with  the  soil."  (75.,  p. 
189.)  And  Sir  Edward  Malet,  in  his  report  to  Earl  Granville,  dated 
December  23, 1881,  said,  referring  to  the  declaration  concerning  free- 
dom of  commerce  in  the  conventional  basin  of  the  Congo: 

The  declaration,  as  fonnulated,  practically  binds  the  territory  tself  to  which 
those  engagements  relafe.  No  power  can  occupy  any  part  of  it  in  future  ex- 
cept under  those  engagements.  Any  power,  therefore,  not  represented  in  the 
conference,  if  it  acquires  possession  in  the  territory,  would  have  to  respect 
the  engagements  entered  into.     {lb.,  p.  307.) 

And  on  February  2i,  1885,  writing  again  to  Earl  Granville,  and 
referring  to  the  proceedings  at  the  session  of  January  31  above 
quoted,  Sir  Edward  Malet  said : 

The  assurances  given,  in  which  the  French  Ambassador  emphatically  joined, 
that  equality  of  treatment  in  the  free  zone  is  for  all  time;  can  not  fail  to  set 
this  question  at  rest.     (lb.,  pp.  308-309.) 

The  action  of  the  Berlin  African  Conference,  therefore,  was  in  the 
nature  of  a  supreme  federal  constitution  or  a  supreme  law  of  the  land, 
affecting  all  the  States  then  or  thereafter  exercising  sovereignty  in 


154        THE   QUESTION    OF   ABORIGINES   IN    THE   LAW   OF   NATIONS. 

the  conventional  zone  established  by  the  conference.  The  final  act 
was  not  "  legislation  "  in  the  ordinary  sense,  since  none  of  the  signa- 
tory States  bound  itself  to  enforce  it.  But  neither  was  it  a  mere 
''  intervention,"  since  the  powers  exercising  sovereignty  in  the  region 
participated  with  powers  exercising  no  sovereignty  there,  and  for 
the  same  reason  it  was  not  a  mere  "  cooperative  agreement  "  of  parties 
engaged  in  a  common  work.  The  final  act  seems  to  be  most  correctly 
described  as  an  act  of  supreme  international  jurisdiction,  the  signa- 
tory and  adhering  powers  being  or  representing  the  society  of  the 
civilized  States.  If  this  is  the  case,  the  conference  established  a 
political  entity  in  middle  Africa  in  the  nature  of  a  new  "  State," 
federalistic  in  character,  whose  "  organization  and  administration  " 
were  so  prescribed  that  middle  Africa  "  is  to  be  held  for  all  time,  as 
it  were,  in  trust  for  all  peoples,"  and  especiall}^  for  the  aborigines, 
under  the  terms  prescribed  by  the  conference  as  a  covenant  running 
with  the  land,  which  no  State  obligated  itself  to  enforce,  but  which 
any  State  or  group  of  States  was  at  liberty  and  under  moral  obliga- 
tion to  enforce.  This  great  and  novel  political  entity  may  perhaps 
be  properly  described  as  the  "  middle  African  zone  of  international 
jurisdiction." 


CHAPTER  XIT. 

THE  FAILURE  OF  THE  PROPOSALS,  IN  THE  BERLIN  AFRICAN  CONFERENCE, 
FOR  NEUTRALIZATION  AND  SURVEILLANCE  OF  THE  MIDDLE  AFRICAN  ZONE 
OF  INTERNATIONAL  JURISDICTION,  AS  AFFECTING  THE  DEVELOPMENT 
OF  THE  LAW  OF  NATIONS  REGARDING  ABORIGINES. 

A.  NEUTRALIZATION. 

It  was  evident,  when  the  conference  had  reached  the  point  of 
agreeing  upon  the  conventional  basin  of  the  Congo,  that  they  were 
.really  establishing  and  legislating  for  a  territorial  institution  analo- 
gous to  an  international  reservation. 

The  question  immediately  arose  whether  or  not  any  one  or  more 
civilized  States  should  have  the  right  to  make  war  in  the  international 
reservation,  and  thus  be  able  to  set  at  naught  the  provisions  which 
all  the  civilized  States  had  made  for  the  welfare  of  all  concerned 
within  the  rt^servation.  As  the  international  reservation  was  to  be 
parceled  out  among  several  civilized  States,  there  was  danger  not 
only  that  those  exercising  such  sovereignty  might  war  with  each 
other,  but  that  States  not  exercising  such  sovereignty  might  war  with 
.  those  exercising  it.  Hence  there  was  danger  not  only  of  wars  arising 
within  the  reservation,  but  of  the  transfer  to  the  reservation  of  wars 
arising  outside  of  it. 

On  November  18,  1884,  at  the  second  session  of* the  conference,  Mr. 
Kasson  read  the  statement  setting  forth  the  general  policy  of  the 
United  States  referred  to  above. 

Speaking  of  Stanley's  explorations,  it  was  said : 

His  discoveries  aroused  tlie  attention  of  all  nations.  It  was  evident  tliat  very 
«oon  that  country  would  be  exposed  to  the  dangerous  rivalries  of  conflicting 
nationalities.  TlT^re  was  even  danger  of  it  being  so  appropriated  as  to  exclude 
It  from  free  intercourse  with  a  large  part  of  the  civilized  world.  It  was  the 
earnest  desire  of  the  Government  of  the  United  States  that  these  discoveries 
should  be  utilized  for  the  civilization  of  the  native  races,  and  for  the  abolition 
of  the  slave  trade,  and  that  early  action  should  be  taken  to  avoid  international 
conflicts  likely  to  arise  from  national  rivalry  in  the  acquisition  of  special 
privileges  in  the  vast  region  so  suddenly  exposed  to  commercial  enterprises.  If 
that  country  could  be  neutralized  against  aggression,  with  equal  privileges  for 
all,  such  an  arrangement  ought,  in  the  opinion  of  my  Government,  to  secure 
general  satisfaction. 

,  Speaking  of  the  recognition  by  the  United  States  of  the  flag  of  the 
International  Congo  Association,  the  statement  asserted : 

The  President  of  the  United  States  *  *  *  believes  that  in  thus  recogniz- 
ing the  only  dominant  flag  found  in  that  country  he  acted  in  the  common  interest 

155 


156        THE   QUESTION    OF   ABORIGINES  IN    THE   LAW   OF   NATIONS. 

of  civilized  nations.  He  regards  this  local  government,  or  any  successor,  resting 
on  the  same  bases  and  principles,  as  an  assurance  that  the  dangers  of  inter- 
national violence  will  be  averted ;  that  the  enormity  of  the  slave  traffic  will  be 
suppressed ;  that  the  blacks  will  learn  from  it  that  the  civilization  and  dominion 
of  the  white  man  means  for  them  peace  and  freedom  and  the  development  of 
useful  commerce,  free  to  all  the  world. 

He  therefore  desires  to  see  in  the  delimitation  of  the  region  which  shall  be 
subjected  to  this  benevolent  rule  the  widest  expansion  consistent  with  the  just 
territorial  rights  of  the  Governments.  In  so  far  as  this  neutral  and  peaceful 
zone  shall  be  expanded,  so  far  he  foresees  the  strengthening  of  the  guaranties 
of  peace,  of  African  civilization,  and  of  profitable  commerce  with  the  whole 
family  of  nations. 

(Report  of  the  Secretary  of  State  on  the  Independent  State  of  the  Congo, 
1886,  p.  34.) 

There  was  genera]  agreement  for  a  neutralization  of  the  rivers 
Congo  and  Niger,  which  should  be  an  agreement  of  self-abnegation 
on  the  part  of  the  signatory  States  and  without  any  guaranty  bind- 
ing them  to  intervene  in  case  the  neutrality  of  the  rivers  was  vio- 
lated. 

The  proposition  of  the  United  States  that  the  enormous  extent  of 
the  Congo  Basin — increased  largely  by  the  agreement  of  the  con- 
ference fixing  the  "  conventional "  basin  of  the  Congo — be  neutral- 
ized raised  a  great  number  of  difficult  questions.  Should  the  agree- 
ment for  neutralization  be  one  of  individual  self-abnegation  only,  or 
should  it  include  a  guaranty  that  in  case  one  or  more  violated  the 
neutrality  the  others  would  forcibly  intervene?  Should  the  terri- 
tory be  attempted  to  be  kept  free  from  wars  arising  in  Africa  itself 
or  should  it  only  be  kept  from  being  made  a  theater  of  Avar  as  an 
incident  to  wars  waged  between  civilized  States,  the  main  theater 
of  which  was  outside  of  Africa  ?  These  questions  were  in  fact  con- 
sidered, as  the  proceedings  show.  Other  questions  necessarily  arose 
and  must  have  been  discussed  privately,  though  obviously  too  delicate 
for  public  discussion  and  record.  Should  the  renunciation  extend  to- 
preventing  the  colonizing  powers  from  organizing  colonial  armies  and 
navies  of  any  kind  in  the  international  zone,  or  colonial  armies  and 
navies,  the  personnel  of  which  should  be  recruited  from  the  aborig- 
ines ?  Or  should  it  prevent  them  from  establishing  munition  plants, 
arsenals,  and  naval  bases  in  international  zone?  Should  the  inhibi- 
tion or  renunciation  of  war  be  required  only  from  the  States  having 
colonies  in  the  international  zone,  or  from  all  States?  Should  the 
inhibition  extend  to  requiring  the  States  having  colonial  possessions, 
in  the  international  zone  to  punish  their  citizens  who  should  attempt 
to  bring  about  war  with  another  such  State  by  exciting  aboriginal 
border  tribes  to  revolution  or  to  the  commission  of  atrocities?  In 
view  of  the  opportunities  which  aboriginal  tribes  have  always  offered 
and  must  always  offer  to  adventurers  or  politicians  as  a  means  of 


THE   QUESTION   OF  ABORIGINES  IN   THE  LAW   OP   NATIONS.       157 

stirring  up  international  war  between  civilized  States,  the  question 
•of  keeping  international  war  out  of  the  international  zone,  or  out  of 
any  other  colonized  region  inhabited  by  aboriginal  tribes,  was  a 
peculiarly  difficult  one. 

The  original  proposition  submitted  by  Mr.  Kasson  was  as  follows 
</6.,  p.  63): 

To  assure  in  time  of  war  the  continuance  of  the  liberty  of  commerce  and  of 
navigation  before  stipulated,  should  war  unhappily  exist  between  any  two  or 
more  powers  adhering  to  this  declaration,  each  of  the  signatory  powers  engages 
itself  to  treat  all  the  free  commercial  territories  defined  in  tlie  first  declaration 
■of  this  conference,  together  with  all  its  water  routes,  as  the  territory  of  a  neu-' 
"tral  in  which  no  act  of  war  shall  be  committed  by  either  belligerent  against  the 
•other  and.no  articles  contraband  of  war  shall  be  supplied  therein  to  either  bel- 
ligerent ;  and  each  of  the  signatory  powers  reserves  the  right  to  cause  this  stipu- 
lation to  be  respected. 

This  proposition  came  up  on  December  10  before  the  general  com- 
Tuittee  of  the  conference,  during  the  discussion  in  regard  to  the 
article  neutralizing  the  Congo  River  and  the  works  connected  with 
its  navigation.  The  report  of  the  committee  referring  to  the  propo- 
sition was  as  follows  (/?>.,  pp.  103,  104)  : 

According  to  that  plan,  it  is  not  only  the  river,  the  assimilated  watercourses, 
and  the  roads  that  are  to  be  declared  neutral  in  time  of  war ;  all  the  territories 
forming  part  of  the  conventional  basin  of  the  Congo,  as  marked  out  in  Article  I 
of  the  declaration  as  to  the  freedom  of  connnerce,  are  to  be  placed  under  the 
same  regimen.  Any  act  of  hostility  in  those  localities  on  the  part  of  the  bel- 
ligerents is  to  be  prohibited,  and  no  article  classed  as  contraband  of  war  is  to 
"be  furnished  to  them.  Finally,  the  signatory  powers  are  to  have  the  right  to 
cause  this  neutrality  to  be  respected. 

In  a  statement  which  he  read  to  the  commission,  Mr.  Kasson  explained  and 
justified  his  proposition.  He  did  not  propose,  he  said,  absolutely  to  exclude  the 
hypothesis  of  a  war  between  powers  situated  on  the  banks  of  the  Congo ;  he 
wished,  however,  to  prevent  any  European  or  American  powers,  whether  they 
had  or  had  not  any  possessions  in  the  basin  of  the  Congo,  from  making  that  the 
theater  of  hostilities  in  case  of  any  such  hostilities  breaking  out.  Colonial  wars 
considerably  hampered  and  for  a  long  time  paralyzed  the  prosperity  of  the 
American  colonies.  The  same  experience  should  not  be  repeated  in  Africa. 
The  efforts  that  shall  be  made  and  the  establishments  that  may  be  created  at 
great  expense  ought  not  to  be  threatened  or  destroyed  by  rivalries  and  contests 
in  which  these  States  themselves  have  no  interest.  In  order  to  prevent  any  mis- 
understanding of  his  idea,  Mr.  Kasson  translated  it  in  terms  conformable  to  the 
■explanations  contained  in  his  m^moire  jiisticatif. 

At  the  request  of  Mr.  von  Kusserow  [a  delegate  of  Germany],  the  jurists 
present  at  the  session  were  requested  to  make  their  views  known.  Prof.  Asser, 
delegate  of  the  Netherlands,  supported  the  motion  made  by  Mr.  Kasson,  for  the 
reason  that  the  freedom  of  rivers  in  time  of  war  is  not  included  in  that  of  terri- 
tories. He  made  a  distinction  between  the  liberty  of  continuing  commerce  and 
neutrality,  and  he  rendered  homage  to  diplomacy  aiding  the  progress  of  the 
science  of  international  law. 

Mr.  Travers  Twiss,  British  delegate,  thought  that  it  would  be  difficult  to 
maintain  neutrality  in  Africa  in  case  of  a  war  between  the  powers  owning  eol- 


158       THE   QUESTION   OF  ABOEIGINES  IN   THE   LAW   OF   NATIONS. 

onies  there.    If,  however,  it  was  proposed  not  to  forbid  war  but  to  c-ircumscribe 
its  theater,  the  proposition  was  a  practical  one. 

Mr.  En;,^elhardt,  French  deleg-ate.  stated  that  they  were  ajijreed  as  to  the 
maintenance  of  navigation  in  time  of  war.  Neutrality  applied  to  watercourses 
only  did  not  seem  liable  to  objection. 

After  these  explanations  the  commission  took  up  the  real  subject  of  the 
debate. 

The  ambassador  of  England  declared  that  his  Government  was  ready  to  sub- 
sci'ibe  to  the  engagement  proposed  by  the  plenipotentiary  of  the  United  States 
and  that  it  accepted  it  in  the  widest  sense  that  it  might  be  desired  to  give  to  it. 
'  Count  Hatzfeldt  [German  delegate]  expressed  himself  in  the  same  terms  on 
behalf  of  Germany,  which,  he  said,  was  disposed  to  extend,  as  far  as  possible,, 
the  immunity  which  had  been  proposed. 

The  plenipotentiary  foe  Italy  [Count  de  Launay]  shared  this  view.  He  hesi- 
tated to  suggest  an  arbitration,  which  did  not  seem  likely  to  receive  the  unani- 
mous vote  of  the  conference ;  he  thought,  however,  that  the  mediation  clause 
inserted  in  the  twenty- third  clause  of  the  Paris  conference  might  be  taken  up 
again,  and  that,  for  this  special  case,  greater  efficacy  might  be  given  to  it.  He 
placed  this  ^opinion  under  the  patronage  of  the  Chevalier  Mancini,  whose  com- 
petence is  likewise  recognized  in  the  science  of  international  law. 

Mr.  de  Serpa  Pimental,  the  plenipotentiary  of  Portugal,  thought  that  Mr. 
Kasson's  plan  threatened  the  sovereignty  of  the  Congo  States  [and]  of  the- 
powers  having  colonies  there.  The  effect  of  its  application  might  be  to  subject 
the  territory  of  the  same  State  or  colony  to  two  different  international  regimes 
if  it  was  traversed  by  the  line  of  demarkation  of  the  Congo  basin.  For  these 
reasons  he  could  not  concur  in  said  plan. 

Mr.  von  Kusserow  [German  delegate]  -expressed  himself  in  a  different  sense. 
He  thought  that  the  American  proposition  was  inspired  by  the  same  thought 
that  presided  at  the  convocation  of  the  conference.  It  accorded  with  the  common 
interest.  All  that  was  necessary  was  to  assume  the  engagement  to  limit  the- 
field  of  future  hostilities,  to  renounce  the  pursuit,  in  the  basin  of  the  Congo,  of 
a  conflict  having  its  origin  elsewhere.  The  States  and  colonies  of  the  Congo- 
would  not  be  involved  In  wars  that  did  not  concern  them.  The  plenipotentiary 
of  Germany  [Prince  Bisn:\arck]  would  support  any  combination  made  in  this 
spirit. 

Baron  Lambermont  [Belgian  p'.enipotentiary]  said  that  if  any  State  should  be 
friendly  to  the  principle  of  neutrality  that  State  was  certainly  Belgium,  which 
is  indebted  to  it  for  a  long  period  of  peace  and  prosperity.  He  remarked,  never- 
theless, that  if,  according  to  Mr.  Kasson's  proposition,  all  that  was  wanted  was  a 
pledge  not  to  make  war  in  the  basin  of  the  Congo,  Belgium  would  merely  act  on; 
its  character  of  a  neutral  in  subscribing  to  such  a  pledge. 

The  ambassador  of  France  [Baron  de  Courcel]  objected  to  the  proposition 
presented  by  the  United  States  minister.  Neutrality,  said  he,  can  exist  in  but 
two  forms;  it  is  either  voluntary  and  free  or  it  is  compulsory  and  guaranteed. 
The  latter  is  not  under  discussion  and  the  former  is  not  decreed.  Hence  the- 
proposed  measure  would  be  without  practical  value.  No  belligerent  Govern- 
ment having  possessions  in  the  basin  of  the  Congo  could  submit  to  it.  It  can 
not  be  asked  that  a  belligerent  State  shall  deprive  itself  of  a  part  of  its  means' 
of  action.  Baron  de  Courcel  added  that  such  an  engagement  could  not  be- 
kept.  When  a  State  is  at  war,  it  wages  war  by  all  the  means  in  its  power. 
The  compromise  proposition  concerning  navigable  water-courses  and  roads 
realizes  all  that  is  practicable  in  Mr,  Kasson's  plan.  This  proposition,  he 
said,  is  a  great  step  in  advance,  since  it  consecrates  the  principle  of  the  in- 


THE  QUESTION   OF  ABORIGINES  IN   THE  LAW  OF  NATIONS.       159 

vioiability  of  private  property  both  of  belligerents  and  neutrals  on  the  said 
waters  and  roads. 

The  ambassador  of  Italy  [Count  de  Launay]  said  that  the  point  in  question 
was  not  so  much  to  render  the  basin  of  the  Congo  neutral  as  it  was  to  assume 
an  engagement  in  virtue  of  which  the  signatory  powers  shoilld  renounce 
carrying  on  wars  in  that  basin. 

It  is  only  the  safety  and  the  expansion  of  the  great  market  that  is  to  be 
opened  on  the  banks  of  the  Congo,  added  Mr.  von  Kusserow,  that  it  is  desirable 
to  secure. 

At  the  conclusion  of  this  exchange  of  views  the  plenipotentiary  of  the  United 
States  defended  his  plan.  He  declared  that  it  did  not  contemplate  wars  in 
Africa,  but  foreign  wars  transferred  to  Africa.  It  only  sought  to  prevent  the 
basin  of  the  Congo  from  becoming  the  scene  of  conflicts  that  did  not  concern 
it  and  to  prevent  belligerents  from  rousing  the  native  tribes,  which  are  already 
but  too  much  given  to  lighting  and  plunder.  Our  proposition,  said  he,  is  not 
only  humanitarian,  but  it  has  a  very  practical  sense. 

As  a  result  of  tlie  discussion  it  was  agreed  to  disconnect  the  pro- 
visions for  freedom  of  commerce  of  tiie  rivers  from  those  relating  to 
the  renunciation  of  hostilities  in  the  international  zone,  and  that  the 
latter  question  should  he  taken  up  later. 

The  committee  on  editing  on  December  15  proposed  as  a  substitute 
an  agreement  of  mutual  self-renunciation,  mediation,  and  arbitration, 
as  follows  {ih.,  pp.  88,  89)  : 

In  order  to  secure  the  maintenance  of  the  freedom  of  commerce  and  naviga- 
tion, even  in  time  of  war,  in  all  the  districts  comprised  within  the  conventional 
basin  of  the  Congo,  and  place  [them  under]  the  regime  of  commerce  and  liberty 
according  to  article  1  of  the  declaration  of  this  conference,  and  to  the  reserva- 
tions therein  stipulated,  the  signatory  powers  of  the  present  declaration,  or 
subsequently  adhering  thereto,  adopt  the  following : 

I.  In  case  of  war  between  the  powers  signing  the  present  declaration  or 
subsequently  adliering  thereto,  and  having  no  possession  in  the  conventional 
basin  of  the  Congo,  the  belligerent  powers  renounce  the  extension  of  hostilities 
[to  the  territories]  comprised  ih  the  said  basin. 

II.  In  case  of  war  between  powers  exercising  rights  of  sovereignty  [or] 
protectorate  in  the  said  basin,  each  of  the  belligerents  shall  likewise  renounce 
the  extension  of  hostilities  to  [the  territories  comprised  in]  the  said  basin. 

III.  In  case  of  war  between  powers,  one  of  which  exercises  and  the  other 
does  not  exercise  rights  of  sovereignty  [or]  protectorate  in  the  said  basin, 
they  shall  likewise  renounce  the  extension  of  hostilities  to  the  territories 
comprising  [comprised  ?]  in  that  basin,  and  the  colonial  possessions  of  the 
first  power  shall  be  considered  on  both  sides  as  the  territory  of  a  non-belligerent 
State. 

IV.  In  case  difficulties  should  arise  between  any  of  the  powers  signing  the 
present  declaration  or  subsequently  adhering  thereto  who  possess  colonies  in 
the  said  basin  and  States  which  may  be  established  there,  or  shall  establish 
themselves  there,  the  parties  retiounce  any  recourse  to  hostilities  and  pledge 
themselves  to  abide  by  the  mediation  [or]  arbitration  of  one  or  more  friendly 
powers. 

On  December  28  the  general  committee  presented  another  draft 
of  a  resolution,  w  hich  met  Avith  the  approval  of  Germany,  the  United 


1 60        THE   QUESTION    OF   ABORIGINES  IN   THE   LAW   OF   NATIONS. 

States,  Great  Britain,  and  Italy,  in  the  following  words  (^&.,  155, 
156): 

In  order  to  insure  the  freedom  of  commerce  and  navigation,  even  in  time  of 
war,  in  all  the  countries  mentioned  in  paragraphs  1  and  2  of  Article  I  of  the 
present  declaration  and  placed  under  the  regime  of  commercinl  freedom,  the 
signatory  powers  of  the  present  declaration  adopt  the  following  principles: 

The  whole  of  the  basin,  including  the  territories  which  are  there  found 
subject  to  the  sovereignty  or  the  protectorate  of  one  of  the  belligerent  powers, 
shall  be  considered  as  the  territory  of  a  non-belligerent  State. 

Consequently,  in  the  case  of  war  between  the  signatory  powers  of  the  present 
■declaration,  these  engage  to  renounce  the  extending  of  hostilities  into  the 
territories  included  in  this  basin  or  the  making  of  them  serve  as  the  base  of 
operations  of  war. 

The  vessels  of  the  belligerents  shall  be  forbidden  to  remain  in  the  territorial 
waters  of  this  basin,  except  in  case  of  storms  or  for  necessary  repairs. 

In  such  cases  the  belligerent  vessel  shall  quit  these  waters  so  soon  as  the 
«torm  shall  have  ceased  or  the  damages  shall  have  been  repaired.  It  shall  not 
coal  there  except  in  such  quantity  as  may  enable  it  to  reach  the  nearest  national 
port  situated  outside  the  basin. 

In  case  difficulties  should  arise  between  the  signatory  powers  of  the  present 
declaration  which  may  exercise  sovereign  or  protectorate  rights  in  the  said 
basin,  the  parties  renounce  the  recourse  to  hostilities  in  the  said  basin  and 
engage  to  appeal  to  the  mediation  or  refer  to  the  arbitration  of  one  or  more 
friendly  powers.  These  engagements  shall  likewise  include  the  independent 
States  established  on  the  littoral  of  the  oriental  zone  mentioned  in  paragraph  3 
of  Article  I  of  the  present  declaration  under  condition  of  their  consent. 

Great  T^^itain  proposed  to  add  a  provision  prohibiting  belligerent 
vessels,  after  coaling  in  the  harbors  of  the  lower  Congo,  from  taking 
coal  again  there  until  after  an  interval  of  three  months. 

France,  by  Baron  de  Conrcel,  declined  to  consent  to  this  formula, 
for  the  reasons  given  by  him  in  opposition  to  the  original  proposi- 
tion of  the  United  States,  but  intimated  that  he  would  propose  a 
formula,  and  the  matter  went  over  until  February  23,  1885,  the  third 
day  before  the  close  of  the  conference. 

On  December  28,  1884,  at  the  time  the  committee  offered  this  pro- 
posal of  neutralization,  the  United  States,  Germany,  Great  Britain, 
and  Italy  had  recognized  the  International  Congo  Association  as  a 
State  apparently  by  boundaries  Avhich  included  the  territories  claimed 
by  France  and  Portugal.  Austria  made  a  commercial  treaty  with 
the  association  on  December  24,  and  Holland  on  December  28,  with- 
out mention  of  territorial  limits.  Spain  made  a  similar  treaty  on 
January  7,  1885.  On  February  5,  1885,  France  came  to  an  agreement 
with  the  International  Congo  Association  by  which  it  recognized  the 
association,  and  the  association  yielded  its  claim  to  most  of  the  region 
claimed  by  France  north  of  the  lower  Congo,  subsequently  known  as 
the  French  Congo,  and  on  February  14,  1885,  the  Portuguese  claims 
were  adjusted  so  that  Portugal  controlled  only  the  south  side  of  the 


THE  QUESnON  OF  ABOKIGINES  IN  THE  LAW  OF  NATIONS.       161 

mouth  of  the  Congo  and  the  association  the  north  side  for  a  consid- 
erable distance  (^6.,  pp.  230-240). 

It  was  made  a  provision  in  the  treaties  of  the  association  with 
France  and  Portugal  that  these  two  States  should  use  their  influence 
in  the  conference  to  obtain  the  neutralization  of  the  territories  of  the 
association  (^&.,  pp.  240,  243). 

On  February  23,  1885,  after  the  association  had  been  admitted  to 
the  conference  as  one  of  the  parties,  Baron  de  Courcel,  as  chairman  of 
the  general  committee,  presented  a  proposition  approved  by  the 
committee  relating  to  the  neutralization  of  the  Congo  Basin.  This 
proposition  was  adopted  and  forms  a  part  of  the  final  act  (Art.  X, 
XI,  and  XII).    These  articles  are  as  follows  (^^>.,  p.  300)  : 

Article  X.  In  order  to  furnish  a  new  guarantee  of  security  to  trade  and  in- 
dustry and  to  encourage,  by  the  maintenance  of  peace,  the  development  of 
civilization  in  the  countries  mentioned  in  Article  1,  and  placed  under  the  system 
of  commercial  freedom,  the  high  signatory  parties  to  the  present  act,  and  those 
who  shall  hereafter  adopt  it,  bind  themselves  to  respect  the  neutrality  of  the 
territories  or  portions  of  territories  belonging  to  the  said  countries,  including 
the  territorial  waters,  so  long  as  the  powers  which  exercise  or  shall  exercise 
the  rights  of  sovereignty  or  protectorate  over  those  territories,  using  their 
option  of  proclaiming  themselves  neutral,  shall  fulfill  the  duties  which  neu- 
trality requires. 

Article  XI.  In  case  a  po\\'er  exercising  rights  of  sovereignty  or  protectorate  in 
the  countries  mentioned  in  Article  I.  and  placed  under  the  free-trade  system, 
shall  be  involved  in  a  war  the  high  si.gnatory  parties  to  the  present  act,  and  those 
who  shall  hereafter  adopt  it,  bind  themselves  to  lend  their  good  offices  in  order 
that  the  territory  belonging  to  this  power  and  comprised  in  the  conventional 
zone  of  commercial  freedom,  may,  by  the  common  consent  of  this  power  and  of 
tlie  other  belligerent  or  belligerents  be  placed  during  the  war  under  the  regime 
of  neutrality  and  be  considered  as  belonging  to  a  non-belligerent  State,  the 
belligerents  thenceforth  abstaining  from  extending  hostilities  to  the  territories 
thus  neutralized,  and  from  using  them  as  a  base  for  warlike  o])erations. 

Art.  XII.  In  case  a  serious  disagreement  originating  on  the  subject  of  or 
within  the  limits  of  the  territories  of  Article  I  and  placed  under  the  system  of 
commercial  freedom  shall  arise  between  any  signatory  powers  of  the  present  act, 
or  the  powers  which  may  become  parties  to  it,  these  powers  bind  themselves, 
before  appealing  to  arms,  to  have  recourse  to  the  mediation  of  one  or  more 
friendly  powers.  In  a  similar  case  the  same  powers  reserve  to  themselves  the 
option  of  having  recourse  to  arbitration. 

Baron  de  Courcel,  in  behalf  of  the  committee,  made  an  explanatory 

statement,  as  follows  (ib.,  pp.  276,  277) : 

It  is  not  the  first  time  that  this  idea  [of  neutralization]  has  appeared  in 
your  deliberations.  In  the  course  of  the  examination  of  the  declaration  on  the 
freedom  of  commerce,  as  also  in  the  discussion  on  the  acts  of  navigation  of 
the  Congo  and  of  the  Niger,  the  idea  of  neutralizing  the  whole  or  a  part  of 
the  territories  of  the  conventional  basin  was  first  expressed.  It  was  even 
partially  applied  in  the  position  assigned  to  these  two  rivers  in  time  Of  war 
(arts.  25  and  33).    The  minister  of  the  United  States  had  submitted  to  you  an 

89581—19 11 


162        THE   QUESTION    OF   ABOEIGINES  IN    THE   LAW   OF    NATIONS. 

s 

extended  proposal  which  would  have  fixed,  on  the  whole  territories,  provisions 

analogous  to  those  which  had  obtained  your  consent  in  dealing  with  the  river 
region.  This  proposal,  as  it  stood,  at  once  met  the  approval  of  several  of  the 
plenipotentiaries;  nevertheless,  certain  doubts  as  to  the  practical  range  of  the 
terms  neutrality  and  neutralization  as  applied  to  territories,  the  care  of  or 
the  respect  for  the  sovereignty  of  States,  the  uncertainties  even  which  then 
existed  as  to  the  future  division  of  the  countries  in  the  basin  of  the  Congo, 
prevented  an  agreement  from  being  reached  on  a  formula  that  would  be  satis- 
factory in  every  emergency. 

These  difficulties  diminished  notably  afterwards.  At  the  time  when  the 
conference  was  drawing  to  the  end  of  its  task,  circumstances  appeared  to 
allow  the  solution  of  a  problem  which  it  had  not  abandoned  without  regret. 
Inspired  with  this  thought,  and  combining  divers  elements  that  had  been  pro- 
duced in  the  course  of  the  former  discussions,  the  ambassador  of  France  took 
the  initiative  in  a  proposal  of  an  essentially  compromissorial  character.  Your 
commission  had  not  received  instructions  to  deal  with  this  point,  but  it  thought 
that  by  agreeing  to  it,  it  would  meet  your  views  and  facilitate  the  progress  of 
your  work. 

On  examination,  the  proposal  of  the  French  plenipotentiary  did  not  raise 
serious  dissent.  The  ambassador  of  England  agreed  to  it.  Some  plenipoten- 
tiaries, whose  views  were  expressed  by  Count  de  Launay  and  Mr.  Kasson, 
would  have  preferred  a  fuller  and  wider  solution,  but  this  did  not  prevent 
them  agreeing  to  the  proposal  which  finally  united  all  the  votes.  It  only 
remains  for  me  briefly  to  describe  its  sense  and  scope. 

The  first  of  the  three  articles  submitted  to  you  provides  thai  the  powers  exer- 
cising the  right  of  sovereignty,  or  of  protectorate,  within  the  conventional  basin 
of  the  Congo,  may,  by  proclaiming  themselves  neutral,  secure  to  their  posses- 
sions the  benefit  of  neutrality.  In  this  case,  and  this  is  the  essential  meaning 
of  the  clause,  the  signatory  powers  engage  beforehand  to  respect  this  neutrality, 
under  the  sole  reserve  of  the  correlative  fulfillment  of  the  duties  which  it  im- 
poses. This  engagement  is  not  only  contracted  toward  the  power  which  issues 
the  declaration  of  neutrality  but  toward  all  the  other  signatory  powers  which 
thus  acquire  the  right  to  demand  that  it  shall  be  respected. 

No  limit  is  imposed  upon  the  declaration  of  neutrality,  which  may  be  tem- 
porary or  perpetual.  It  has  been  explicitly  understood  that  this  provision 
applied  especially  to  the  State  which  the  International  Association  of  the  Congo 
is  about  to  found  and  which  it  appears  to  have  the  intention  of  placing  under 
the  system  of  permanent  neutrality.  This  wish,  therefore,  obtains  the  assent 
and  sanction  of  the  powers  in  advance.  Nevertheless,  other  States  have,  or 
will  have,  possessions  in  the  basin  of  the  Congo  and  may  wish  to  claim  the 
same  privilege.  There  are  at  present  two  which  possess  colonies  hitherto  held, 
under  the  same  system,  situated  partly  in  the  conventional  basin,  partly  outside 
of  it.  It  was  impossible  either  to  exclude  these  territories  from  the  neutrality 
clause  or  to  include  them  wholly,  because  the  neutralization,  placed  under  the 
optional  guaranty  of  the  signatory  powers  to  the  general  act,  could  not  in  any 
way  be  extended  beyond  the  limits  of  the  conventional  basin.  To  guard  against . 
this  difficulty  the  article  contemplates  not  only  the  territories  but  "  the  parts 
of  territory  dependent  upon  the  said  countries."  In  addition,  the  following, 
article  contemplates  more  especially  the  situation  of  the  powers  that  are  in 
this  position.  Let  us  add,  as  the  ambassador  of  England  has  remarked,  that 
the  power  of  declaring  themselves  neutral  would  belong  to  those  powers  exer- 
cising a  sovereignty  or  protectorate  in  the  territories  of  the  conventional  basin 
of  the  Congo  which  may  adhere  to  the  act  in  the  same  manner  as  to  the  signa- 


THE  QUESTION-  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       163 

tory  powers.  Such  would  be  the  case,  for  example,  with  the  Sultan  of  Zanzibar 
if  he  should  adhere  to  the  general  act  and  place  his  States  under  the  system  de- 
fined by  this  act. 

The  second  article  has  for  its  object  to  withdraw  as  much  as  possible  from 
the  evils  of  war  the  regions  included  in  the  basin  of  the  Congo,  without,  never- 
theless, interfering  with  the  sovereignty  of  the  governments.  It  provides  for 
the  case  in  which  a  power  possessing  a  colony  might  be  involved  in  a  war  of 
which  the  cause  or  the  origin  might  be  foreign  to  its  African  possessions.  The 
signatory  or  adhering  powers  bind  themselves,  therefore,  to  tender  their  good 
offices  to  bring  the  two  belligerent  parties  to  consent,  the  one  not  to  extend 
hostilities  to  the  countries  situated  in  the  basin  of  the  Congo  and  the  other  not  to 
make  them  a  base  for  military  operations.  If  this  reciprocal  consent  is  obtained 
the  territories  to  which  it  refers  will  in  fact  be  rendered  neutral  during  the 
continuance  of  the  war. 

The  third  article  contains  an  engagement  to  have  recourse  to  a  preliminary 
mediation  if  a  conflict  shall  arise  in  Africa  itself,  between  powers  exercising 
rights  of  sovereignty  in  the  basin  of  the  Congo.  *  *  *  Mediation  does  not  ex- 
clude the  possibility  of  war ;  it  may  fail  to  prevent  it.  It  is  less  than  arbitra- 
tion, which  respect  for  the  independence  of  States  prevents  a  priori  from  being 
imposed,  but  it  is  more  than  a  simple  recourse  to  good  off^ices.  In  reality,  medi- 
ation will  generally  be  efficacious  and  will  very  often  lead*  to  the  smoothing 
away  of  international  difficulties.  To  the  State — the  growing  Congo  State — 
which  all  the  powers  wish  to  surround  with  pacific  guarantees,  this  provision 
is  of  real  value,  because  it  obliges  the  States  that  may  have  a  disagreement  with 
't  to  have  recourse  to  the  mediation  of  the  friendly  powers. 

B.    SURVEILLANCE. 

The  question  of  placing  the  zone  under  an  international  commis- 
sion of  surveillance  was  considered  in  the  conference. 

In  the  original  draft  of  declaration  laid  before  the  conference  by 
Prince  Bismarck  at  the  first  session,  the  final  paragraph  was  as 
follows : 

With  the  reserve  of  ulterior  arrangements  between  the  Governments  signing 
this  declaration,  and  those  powers  which  shall  exercise  rights  of  sovereignty 
in  the  territories  in  question,  the  international  commission  for  the  navigation 

of  the  Congo,  appointed  in  virtue  of  the  act  signed  at  Berlin  on  the , 

in  the  name  of  the  same  Governments,  shall  be  charged  with  the  [surveillance] 
of  the  application  of  the  principles  proclaimed  and  adopted  by  this  declara- 
tion. (Report  of  the  Secretary  of  State  on  the  Independent  State  of  the 
Congo,  1886,  p.  33.) 

At  the  session  of  the  conference  on  November  27,  1884,  this  propo- 
sition was  taken  up  for  discussion.  The  proceedings  were  as  follows; 
{ih.,  pp.  58-59)  : 

Mr.  de  Serpa,  [delegate  of  Portugal],  thinks  that  the  supervision  attributed  by 
this  paragraph  to  the  international  commission  of  the  Congo  would  impede- 
the  liberty  of  action  and  the  legitimate  initiative  of  the  territorial  governments, 
and  would  create  perpetual  occasions  of  conflict.  The  local  authorities  would 
have  responsibility  for  their  acts,  and  should  preserve  their  full  liberty  of  ad- 
ministration. To  take  this  from  them  would  be  to  compromise  the  development, 
of  colonies. 


164        THE  QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

Baron  de  Coiircel,  plenipotentiary  for  France,  suggested  that  the 
discussion  be  postponed  "  until  the  constitution  of  the  commission 
should  have  been  decided  and  regulated." 

Mr.  Kusserow,  [delegate  of  Germany] ,  said : 

The  German  Government  had  not  the  least  intention  to  encroach  upon  the 
sovereiijn  rights  of  Governments  recognized  or  to  be  recognized.  But,  mean- 
while, it  seemed  to  him  necessary  not  to  leave  without  control  the  liberty  of 
commerce  in  tlie  basin  of  the  Congo.  *  *  *  tj^^  international  commission 
of  the  navigation  of  the  Congo  appeared  to  him  to  be  a  competent  organ  to  be 
personally  charged  with  that  control.  For  -the  rest,  the  plenipotentiaries  of 
Germany  indorse  the  opinion  of  the  French  ambassador,  inclining  to  adjourn 
the  discussion  of  this  paragraph  till  the  erection  of  the  international  commis- 
sion in  question. 

About  December  15,  1884,  the  general  committee  presented  a  draft 
of  articles  concerning  the  navigation  of  the  Congo,  containing  pro- 
visions for  the  establishment  of  an  international  commission  of  navi- 
gation, accompanied  with  a  report  of  the  proceedings  of  the  com- 
mittee during  its  consideration  of  this  subject  (ih.,  pp.  89-102). 
The  committee  stated  that  it  had  based  its  action  upon  the  princi- 
ples derived  from  a  study  of  the  conventional  regimes  adopted  by 
international  agreement  in  the  case  of  the  Khine,  the  Scheldt,  the 
Parana  and  Uruguay,  and  the  Danube  (ib.,  p.  94).  The  European 
commission  of  the  Danube,  established  by  the  treaty  of  Paris  of 
1856,  was  adopted  as  the  model  on  which  the  international  conmiis- 
sion  of  navigation  of  the  Congo  was  to  be  formed  (ib.,  pp.  97-99). 
In  the  report  it  was  said  (^6.,  p.  97) : 

We  have  already  stated  in  the  introduction  to  this  report  that  the  Paris 
congress  was  induced  in  1856  to  charge  a  European  commission  with  the  meas- 
ures to  be  adopted  for  the  improvement  of  the  navigation  of  the  Danube,  and 
that  that  commission  had  justified,  by  the  services  rendered  by  it,  the  ex- 
pectations of  the  Governments  and  of  commercial  men. 

The  desire  that  such  a  commission  might  be  appointed  on  the  Congo  has 
recently  been  expressed  in  various  quarters,  and  has  found  practical  expres- 
sion in  the  draft  of  a  navigation  instrument  prepared  by  the  German  Govern- 
ment. 

Your  commission  has  adopted  this  idea  without  discussion.  If  debates  have 
arisen,  they  have  had  special  reference,  as  you  will  see  hereafter,  to  the  char- 
acter of  the  task  to  be  intrusted  to  the  international  connnission  and  to  the 
nature  and  limits  of  its  powers. 

In  the  project  of  declaration  regarding'  the  navigation  of  the 
Congo,  presented  by  the  general  committee  and  accompanying  this 
report,  it  was  provided  as  follows  (^&.,  p.  81) : 

Article  VII.  An  international  commission  is  instituted,  empo^yered  to  secure 
the  execution  of  the  provisions  of  the  present  act. 

The  report  of  the  committee  shows  that  the  delegates  of  Belgium 
proposed  that  the  international  commission  should  be  independent  of 
the  territorial  authority,  and  that  its  officials  should  have  the  bene- 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       165 

fit  of  extraterritoriality,  as  in  the  case  of  the  Danube  commission; 
but  that  this  proposition  met  with  objections  from  several  powers, 
notably  France  and  Portugal  (^5.,  p.  98). 

The  report  also  shows  that  a  proposal  was  made  that  the  loans  con- 
tracted by  the  international  commission  should  be  held  to  be  guaran- 
teed by  the  States  signing  the  final  act  or  adhering  thereto,  and  that 
this  proposal  was  opposed  by  the  United  States  and  the  Netherlands 
{lb.,  pp.  100,  101). 

By  the  final  act  of  the  conference  the  navigation  of  the  Congo,  its 
affluents,  and  the  roads,  railways,  or  lateral  canals  "  constructed  with 
the  special  object  of  obviating  the  innavigability  or  correcting  the  im- 
perfection of  the  river  route  on  certain  sections  of  the  course  of  the 
Congo "  were  made  "  free  for  the  merchant  ships  of  all  nations 
equally,  whether  carrying  cargo  or  ballast,  for  the  transportation  of 
both  merchandise  and  passengers."  Only  taxes  or  duties  of  a  non- 
discriminating character  and  "  having  the  character  of  an  equivalent 
for  services  rendered  to  navigation  "  were  permitted  to  be  levied  by 
the  international  commission,  and  the  kinds  of  taxes  and  duties  were 
specified  (arts.  13-16  of  the  final  act,  ib.,  pp.  300,  301). 

The  provisions  of  the  final  act  concerning  the  constitution  and 
powers  of  the  international  commission  of  navigation,  strictly  as  such, 
are  contained  in  articles  17  to  21,  and  are  as  follows  (z6.,  pp.  301-303) : 

Art.  17.  An  international  commission  shall  be  created  which  shall  be  charged 
with  the  execution  of  the  present  act  of  navigation.  The  signatory  powers  of 
this  act,  as  well  as  those  who  may  subsequently  adhere  to  it,  may  always  be 
represented  on  the  said  commission  each  by  one  delegate.  But  no  delegate 
shall  have  more  than  one  vote,  even  in  the  case  of  his  representing  several  gov- 
ernments. This  delegate  will  be  directly  paid  by  his  government.  As  for  the 
various  agents  and  employees  of  the  international  commission,  their  compensa- 
tion shall  be  deducted  from  the  amount  of  dues  collected,  according  to  paragraphs 
2  and  3  of  article  14.  The  amount  of  the  said  compensation,  as  well  as  the 
number,  grade,  and  powers  of  the  agents  and  employees,  shall  be  entered  in  the 
returns  to  be  sent  yearly  to  the  Governments  represented  in  the  international 
commission. 

Art.  18.  The  members  of  the  international  commission,  as  well  as  its  ap- 
pointed agents,  are  invested  with  the  privilege  of  inviolability  in  the  exercise 
of  their  functions.  The  same  guarantee  shall  apply  to  the  offices  and  archives 
of  the  commission. 

Art.  19-  The  international  commission  for  the  navigation  of  the  Congo  shall 
be  constituted  as  soon  as  five  of  the  signatory  powers  of  the  present  general  act 
shall  have  appointed  their  delegates.  Pending  the  constitution  of  the  commis- 
sion, the  appointment  of  these  delegates  shall  be  notified  to  the  Imperial  Gov- 
ernment of  Germany,  which  shall  see  to  it  that  the  necessary  steps  are  taken 
to  summon  the  meeting  of  the  commission.  The  commission  shall  at  once  draw 
up  navigation,  river  police,  pilot,  and  quarantine  rules.  These  rules,  as  well  as 
the  tariffs  to  be  framed  by  the  commission,  shall,  before  coming  into  force,  be 
submitted  for  approval  to  the  powers  represented  in  the  commission.  The 
powers  interested  shall  comnmnicate  their  views  with  as  little  delay  as  possi- 
ble.    Any  infringements  of  these  rules  shall  be  checked  by  the  agents  of  the 


166        THE   QUESTION   OF  ABORIGINES  IN   THE   LAW   OF   NATIONS. 

international  commission  wherever  it  exercises  direct  aiitliority,  and  elsewhere 
by  the  riparian  power.  In  the  case  of  an  abuse  of  power,  or  of  an  act  of 
injustice,  on  the  part  of  any  agent  or  employee  of  the  international  commission, 
the  individual  who  considers  himself  to  be  aggrieved  in  his  person  or  rights 
may  apply  to  the  consular  officer  of  his  country.  The  latter  shall  examine  his 
complaint,  and  if  he  finds  it  prima  facie  reasonable,  he  will  be  entitled  to  bring 
it  before  the  commission.  At  his  instance,  then,  the  commission,  represented 
by  at  least  three  of  its  members,  shall,  in  conjunction  with  him,  inquire  into 
the  conduct  of  its  agent  or  employee.  •  Should  the  consular  officer  look  upon  the 
decision  of  the  commission  as  raising  questions  of  law,  he  will  report  on  the 
subject  to  his  Government,  which  may  then  have  recourse  to  the  powers  repre- 
sented on  the  commission,  and  request  them  to  agree  as  to  the  instructions  to 
be  given  to  the  commission. 

Art.  20.  The  international  commission  of  the  Congo,  charged,  according  to 
article  17  with  the  execution  of  the  present  act  of  navigation,  shall,  in  par- 
ticular, have  power — 

1.  To  decide  what  works  are  necessary  to  secure  the  navigability  of  the 
Congo  in  accordance  with  the  needs  of  international  trade.  On  those  sections 
of  the  river,  where  no  power  exercises  sovereign  rights,  the  international  com- 
mission shall  itself  take  the  measures  necessary  to  secure  the  navigability  of 
the  river.  On  those  sections  of  the  river  held  by  a  sovereign  power  the  inter- 
national coipmission  shall  concert  its  action  with  the  riparian  authorities. 

2.  To  fix  the  pilotage  tariff  and  that  of  the  general  navigation  dues  as  pro- 
vided for  by  paragraphs  2  and  3  of  article  14.  The  tariffs  mentioned  in  the  first 
paragraph  of  article  14  shall  be  framed  by  the  territorial  authorities  within  the 
limits  prescribed  in  the  said  article.  The  levying  of  the  various  dues  shall  be 
under  the  charge  of  the  international  or  territorial  authorities  on  whose  behalf 
they  are  established. 

3.  To  administer  the  revenue  arising  from  the  enforcement  of  the  provisions 
contained  in  the  preceding  paragraph   (2). 

4.  To  superintend  the  quarantine  establishment  created  in  virtue  of  article  24. 

5.  To  appoint  officials  for  the  general  service  of  navigation,  and  also  its  own 
proper  employees.  It  shall  be  for  the  territorial  authorities  to  appoint  subin- 
spectors  on  sections  of  the  river  occupied  by  a  t)ower,  and  for  the  international 
commission  to  do  so  on  the  other  sections.  The  riparian  power  shall  notify  to 
the  internationl  commission  the  appointment  of  subinspectors,  and  this  power 
shall  take  care  that  their  salaries  be  paid.  In  the  exercise  of  its  functions,  as 
above  defined  and  limited,  the  international  commission  shall  be  independent 
of  the  territorial  authorities. 

Art.  21.  In  the  accomplishment  of  its  task,  the  international  commission 
may,  if  need  be,  have  recourse  to  the  war  vessels  of  the  signatory  powers  of 
this  act,  and  of  those  who  may  in  future  accede  to  it,  under  the  reserve,  how- 
ever, of  such  iu:  tructions  as  may  be  given  to  the  commanders  of  these  vessels 
by  their  respective  Governments. 

Art.  22.  The  war  vessels  of  the  signatory  powers  of  this  act  that  may  enter 
the  Congo  are  exempt  from  payment  of  the  navigation  dues  provided  for 
in  paragraph  3  of  article  14;  but,  unles-i  their  intervention  has  been  asked  for 
by  the  international  commission  or  its  agents,  according  to  the  preceding  article, 
they  shall  pay  all  pilot  or  harbor  dues. 

Art.  23.  With  the  view  of  providing  for  the  technical  and  administrative  ex- 
penses which  it  may  incur,  the  international  commission  created  by  article  17 
may,  in  its  own  name,  negotiate  loans  to  be  exclusively  guaranteed  by  the 
revenues  a' signed  to  the  said  commission.     The  decisions  of  the  commission 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       167 

authorizing  the  conclusion  of  a  loan  must  be  reached  by  a  majority  of  two- 
thirds.  It  is  understood  that  the  Governments  represented  in  the  commission 
.''hall  not  in  any  case  be  held  as  assuming  any  guaranty,  or  as  contracting  any 
engagement  or  joint  liability  with  respect  to  the  said  Iqans,  unless  under 
special  conventions  concluded  by  them  to  this  effect.  The  revenue  yielded  by 
the  dues  specified  in  paragraph  3  of  article  14  shall  be  appropriated  by  way 
of  priority  to  the  payment  of  the  interest  and  sinking  fund  of  the  said  loans, 
according  to  the  agreements  made  with  the  lenders. 

Art.  24.  At  the  mouth  of  the  Congo  there  shall  be  established,  either  at  the 
initiative  of  the  riparian  powers,  or  through  the  intervention  of  the  interna- 
tional commission,  a  quarantine  establishment  for  the  control-  of  vessels  passing 
out  of  as  vrell  as  into  the  river.  The  powers  shall  sub  equently  decide  whether 
sanitary  control  shall  be  exercised  over  vessels  engaged  in  the  navigation  of 
the  river  itself ;  and  if  so,  in  what  manner. 

Art.  25.  The  provisions  of  the  present  act  of  navigation  shall  remain  in  force 
in  time  of  war.  Consequently  all  nations,  whether  neutral  or  belligerent,  i-hall 
be  always  free,  for  purposes  of  trade,  to  navigate  the  Congo,  its  branches, 
affluents,  and  mouths,  as  well  as  the  territorial  waters  fronting  the  mouths  of 
the  river.  Traffic  shall  similarly  remain  free,  despite  a  f^tate  of  war,  on  the 
roads,  railways,  lakes,  and  canals  mentioned  in  articles  15  and  16.  There  shall 
be  no  exception  to  this  principle,  except  so  far  as  concerns  the  transportation 
of  articles  intended  for  a  belligerent  and  considered,  in  virtue  of  the  law  of 
nations',  as  contraband  of  war.  All  the  works  and  establishments  created  in 
pursuance  of  the  present  act,  especially  the  tax  offices  and  their  treasuries,  as 
well  as  the  permanent  service  staff  of  these  establishments,  shall  enjoy  the  bene- 
fit of  neutrality,  and  shall,  therefore,  be  respected  and  protected  by  belligerents. 

At  the  session  of  the  conference  on  December  18,  1884,  considera- 
tion was  again  given  to  the  proposal  of  the  German  Government 
that  there  should  be  conferred  on  the  international  commission  a 
general  power  of  surveillance  of  all  action  under  the  provisions  of 
the  final  act.  It  would  appear  that  the  proposal  had  been  acted  upon 
unfavorably  and  privately  by  the  conference,  but  that  the  idea  had 
received  such  support  that  it  was  felt  to  be  necessary  that  some  refer- 
ence to  such  a  general  surveillance  should  be  made  in  the  final  act. 
This  was  effected  by  the  German  Government  itself  offering  a  new 
proposal,  in  which  the  substance  of  the  original  proposal  was  given 
up,  but  which  nevertheless  kept  the  principle  of  general  surveillance 
in  the  final  act.    The  record  is  as  follows  (^&.,  pp.  126,  127)  : 

The  president  recalls  that  the  study  of  the  final  paragraph  of  the  first  project 
of  declaration  submitted  to  the  conference  by  the  Government  of  Germany 
*  *  *  had  been  referred  to  a  later  epoch,  and  that  the  time  has  come  to 
proceed  to  it. 

Mr.  Busch,  [delegate  of  Germany],  read,  from  a  newly  proposed 
text  a  revision  of  this  paragraph,  as  follows : 

In  all  parts  of  the  territory  covered  by  the  present  declaration  [where  no] 
power  shall  exorcise  rights  of  sovereignty,  the  international  commission  for 
the  navigation  of  the  Congo  instituted  in  virtue  of  the  act  signed  at  Berlin  the 
,   shall  be  charged   with  superintending    [c/mr^ec   cVsnrvcillcr],   the 


168        THE   QUESTION   OF   ABORIGINES  IN   THE   LAW   OF   NATIONS. 

application  of  the  principles  proclaimed  and  established  by  this  declaration. 
In  all  cases  where  difficulties  relative  to  the  application  of  the  principles  estab- 
lished by  the  present  act  shall  arise,  the  interested  Governments  shall  [be  at 
liberty  to]  agree  to  appeal  to  the  good  offices  of  the  international  conniiission 
by  [authorizing  it  to  make]  an  examination  [into]  the  facts  which  [shall] 
have  been  the  occasion  of  these  difficulties. 

Baron  de  Courcel  states  that  they  found  in  the  beginning  some  obscurities  in 
the  sense  of  this  paragraph.  Since  then  it  has  been  clearly  established  that 
the  authority  attributed  to  the  international  commission  in  regard  to  superin- 
tending the  application  of  the  principles  of  commercial  liberty  could  only  be 
exercised  in  the  territories  where  no  regularly  established  sovereign  authority 
existed. 

The  plenipotentiary  of  France  remarked  on  the  other  hand  that  the  new 
revision  contained  a  paragraph  which  did  not  exist  in  the  pi:imitive  text,  and 
which  had  for  its  object  to  forsee  the  eventuality  of  arbitration,  simply  volun- 
tary and  optional,  in  view  of  which  the  Governments  would  appeal  to  the 
good  offices  of  the  international  commission.  Baron  de  Courcel  adheres  to 
this  arrangement,  which  he  thinks  may  be  fruitful. 

Sir  Edward  Malet  is  of  the  same  opinion  as  the  ambassador  of  France. 

Baron  Lambermont,  [plenipotentiary  of  Belgium],  observes  that  the  first 
paragraph  of  the  text  under  discussion  affirms,  on  behalf  of  the  international 
commission,  a  right  of  supervision  relative  to  the  application  of  certain  prin- 
ciples in  the  regions  where  no  constituted  authority  exists.  He  asks  upon 
whom  falls  this  application  which  the  international  commission  should  super- 
vise. 

Mr.  Busch,  [delegate  of  Germany],  replies  that  the  question  is  of  the  applica- 
tion of  the  regime  of  commercial  liberty  by  the  aboriginal  chiefs. 

Mr.  de  Kusserow,  [delegate  of  Germany].  thou,trht  it  proper  to  insert  in  the 
first  paragraph  the  words  "  or  protectorate  "  between  the  words  "  sovereignty  " 
and  the  words  "  the  international  commission." 

The  conference  adheres  to  this  modification. 

The  w^hole  of  the  final  paragraph  was  then  adopted. 

The  article  agreed  upon  appears  in  the  final  act,  as  one  of  the 
articles  of  the  declaration  concerning  freedom  of  commerce,  and  is  as 
follows : 

■  Article  VIII.  In  all  parts  of  the  territory  had  in  view  by  this  present  declara- 
tion, where  no  power  shall  exercise  rights  of  sovereignty  or  protectorate,  the 
International  Navigation  Commissioni  of  the  Congo,  instituted  in  virtue  of 
Article  17,  shall  be  charged  with  the  supervision  (charg^e  de  surveiller)  the 
application  of  the  principles  proclaimed  and  perpetuated  by  this  declaration. 
In  all  cases  of  difference  relative  to  the  application  of  the  principles  estab- 
lished by  the  present  declaration,  the  Governments  concerned  may  agree  to 
appeal  to  the  good  offices  of  the  international  commission  by  requesting  it  to 
examine  the  matters  that  may  have  occasioned  such  difficulties. 

As  it  was  not  likely  that  there  would  long  remain  in  the  inter- 
national zone  any  place  which  would  not  be  under  the  sovereignty 
or  protectorate  of  a  civilized  State,  and  as  the  whole  zone  was  soon 
effectively  placed  under  civilized  sovereignty,  the  right  of  surveil- 
lance delegated  to  the  International  Commission  of  Navigation  was 
of  no  effect.     Its  action  in  adjusting  disputes  between  the  States 


THE  QUESTION  OF  ABORIGINES  IN  TITE  LAW  OF  NATIONS.       169 

exercising  sovereignty  was  dependent  upon  the  willingness  of  both 
or  all  disputants  to  appeal  to  its  good  offices. 

As  to  the  meaning  which  the  Conference  attached  to  the  word 
surveillance,  which  the  English  text  translates  as  "supervision," 
reference  may  be  made  to  the  report  of  the  commission  regarding 
the  article  which  now  appears  as  article  20  of  the  final  act.  Speaking 
of  the  provision  which  authorizes  the  commission  to  superintend 
the  quarantine  establishment,  etc.  (which  in  the  original  French 
version  reads  la  surveillance  de  Vetahlissement  quarantenaire^  etc.), 
the  committee  said  (^&.,  p.  99)  : 

For  the  quarantine,  for  whose  establishment  at  the  mouth  of  the  river  pro- 
vision is  made,  the  term  "  control "  has  been  replaced  by  that  of  "surveil- 
lance," which  implies  a  less  extended  intervention. 

An  agreement  for  surveillance  apparently  would  not  have  author- 
ized any  action  beyond  that  of  ascertaining  the  facts  concerning 
the  administration  of  the  law,  offering  suggestions  in  the  nature  of 
conciliatory  advice,  and  making  reports  to  all  the  civilized  States. 

The  attempt  to  establish  a  surveillance  of  the  international  zone 
for  the  purpose  of  rendering  the  cooperative  action  of  the  States 
exercising  sovereignty  within  its  borders  harmonious  and  effective, 
thus  resulted  only  in  a  virtual  failure,  as  did  the  attempt  to  neu- 
tralize the  region.  The  compromise  measures  adopted  on  both  these 
subjects,  however,  have  kept  the  question  alive.  That  neutraliza- 
tion of  an  international  zone,  and  international  surveillance  over  it, 
are  necessary  to  secure  the  effective  carrying  out  of  the  international 
cooperative  agreements  of  the  States  exercising  sovereignty  within 
the  zone,  is  evident.  The  compromise  measures  adopted  by  the  con- 
ference in  this  respect  will  no  doubt  serve  in  some  future  African 
conference  as  bases  for  developing  this  middle  African  zone  of  in- 
ternational jurisdiction  into  an  effective  political  organization  for 
assuring  the  proper  guardianship  of  the  aborigines  and  for  main- 
taining the  "  open  door  "  to  the  civilizing  activities  of  the  people  of 
all  civilized  States. 


CHAPTER  XIII. 

INTERNATIONAL    ACTION    SINCE    THE    BERLIN    AFRICAN    CONFERENCE,    AF- 
FECTING  THE   LAW    OF    NATIONS   REGARDING   ABORIGINES. 

On  January  5,  1885,  while  the  Berlin  African  Conference  was  in 
session,  the  House  of  Representatives  adopted  a  resolution  requesting 
the  President  to  furnish  it  with  information  concerning  the  confer- 
ence. In  response,  the  President,  on  January  30,  1885,  sent  to  the 
House  a  message  inclosing  a  report  to  the  Secretary  of  State  contain- 
ing a  statement  of  the  circumstances  leading  up  to  the  conference 
and  the  action  taken  up  to  that  time.  (See  48th  Cong.,  2d  sess., 
H.  R.,  Ex.  Doc.  No.  156,  Jan.  30,  1885.) 

On  February  5,  1885,  the  House  adopted  a  resolution  requesting  to 
be  furnished  with  copies  of  all  communications  received  concerning 
the  conference  and  of  the  instructions  given  to  the  United  States 
delegates.  In  response,  the  President,  by  message  of  February  19, 
1885,  transmitted  a  report  of  the  Secretary  of  State  containing  the 
copies  desired,  which  contained  the  proceedings  of  the  conference  to 
January  7,  1885,  and  communications  up  to  February  17,  1885.  (See 
48th  Cong.,  2d  sess.,  H.  R.,  Ex.  Doc.  No.  247,  Feb.  19,  1885.) 

On  the  last  day  of  the  Forty-eighth  Congress,  March  3,  1885, 
eight  days  after  the  final  adjournment  of  the  conference,  the  House 
Committee  on  Foreign  Affairs  presented  a  report  as  follows : 

Your  committee  has  given  to  the  messages  of  the  President  relative  to  the 
participation  of  representatives  of  the  Government  of  the  United  States  in  the 
so-called  Congo  conference  the  grave  consideration  to  which  the  subject  is  en- 
titled. While  not  unmindful  of  the  conspicuous  part  American  enterprise, 
energy,  and  skill  has  taken  in  the  development  of  Africa,  your  committee  is  of 
the  opinion  that  if  such  action  is  acquiesced  in,  without  protest  on  the  part  of 
the  legislative  branch  of  the  Government,  it  might  become  the  beginning  of  a 
new  departure  in  the  foreign  policy  of  the  United  States  and  might  engraft  upon 
the  peaceful  precedents  of  our  diplomacy  a  precedent  liable  to  become  pregnant 
with  foreign  discord  and  domestic  unrest. 

From  the  information  on  the  subject  which  has  been  communicated  to  this 
committee,  it  is  impossible  to  precisely  ascertain  the  purposes  of  the  conference 
and  the  conclusions  it  has  reached.  Your  committee  has  given  serious  consid- 
eration to  the  subject,  with  a  due  regard  to  the  gravity  of  a  new  departure 
from  the  history  and  traditions  of  this  Government,  and  to  the  uniform  absence 
of  any  representation  of  our  Government  in  the  deliberation  of  European  con- 
flicts and  interests,  and  especially  all  conferences  of  European  nations  which 
might  lead  to  disturbances  in  foreign  nations  and  affecting  the  settlement  of 
questions  in  which  this  Government  has  no  interest. 
170 


THE  QUESTTON  OF  ABOKIGINES  IN  THE  LAW  OF  NATIONS.       171 

Your  committee,  in  the  light  of  all  the  knowledge  in  its  possession,  can  only 
•express  the  opinion  that  they  can  find  no  sufficient  reason  for  the  participation 
of  the  Government  of  the  United  States  in  the  Congo  conference,  and  for  a 
departure  from  the  established  political  doctrines  and  policy  of  this  Government 
from  its  formation,  and  therefore  confine  themselves  to  declaring  that  they 
can  not  approve  of  the  fact  that  our  Government  was  at  all  represented  at  the 
Congo  conference,  and  recommend  the  House  to  adopt  the  following  resolution : 

"  Resolved,  That  no  prospect  of  commercial  advantage  warrants  a  departure 
from  the  traditional  policy  of  this  Government  which  forbids  all  entangling 
alliances  with  the  nations  of  the  Old  World ;  and  that  the  participation  of  the 
delegates  of  the  United  States  in  the  so-called  Congo  conference,  while  care- 
fully guarded — as  your  committee  is  informed — in  the  purpose  to  confine  their 
powers  to  the  consideration  of  commercial  interests  exclusively,  is  unfortunate 
in  so  far  as  it  is  a  departure  from  the  policy  which  forbids  the  Government  of 
the  United  States  to  participate  in  any  political  combination  or  movement  out- 
side of  the  American  continent."  (48th  Cong.,  2d  sess.,  H.  R.  Kept.  No.  2655, 
Feb.  28,  1885.) 

This  report  was  referred  to  the  House  Calendar  and  ordered  to  be 
printed.     (Cong.  Rec,  48th  Cong.,  2d  sess.,  p.  2571,  Mar.  3,  1885.) 

In  the  message  of  President  Cleveland  to  Congress  of  December  8, 
1885,  it  was  said : 

A  conference  ,of  delegates  of  the  principal  commercial  nations  was  held  at 
Berlin  last  winter  to  discuss  methods  whereby  the  Congo  Basin  might  be  kept 
open  to  the  world's  trade.  Delegates  attended  on  behalf  of  the  United  States 
•on  the  understanding  that  their  part  should  be  merely  deliberative,  without 
imparting  to  the  results  any  binding  character  as  far  as  the  United  States  were 
concerned.  This  reserve  was  due  to  the  indisposition  of  this  Government  to 
share  in  any  disposal  by  an  international  congress  of  jurisdictional  questions  in 
remote  foreign  territories.  The  results  of  the  conference  were  embodied  in  a 
formal  act  of  the  nature  of  an  international  convention,  which  laid  down  certain 
obligations  purporting  to  be  binding  on  the  signatories,  subject  to  ratification 
within  one  year.  Notwithstanding  the  reservation  under  which  the  delegates 
of  ihe  United  States  attended,  their  signatures  were  attached  to  the  general 
act  in  the  same  manner  as  tliose  of  the  plenipotentiaries  of  other  Governments, 
thus  making  the  United  States  appear,  without  reserve  or  qualification,  as 
signatories  to  a  joint  international  engagement  imposing  on  the  signers  the 
conservation  of  the  territorial  integrity  of  distant  regions  where  we  have  no 
established  interests  or  control. 

This  Government  does  not,  however,  regard  its  reservation  of  liberty  of  action 
in  the  premises  as  at  all  impaired;  and  holding  that  an  engagement  to  share  in 
the  obligation  of  enforcing  neutrality  in  the  remote  valley  of  the  Congo  wouhl 
be  an  alliance  whose  responsibilities  we  are  not  in  a  position  to  assume,  I 
abstain  from  asking  the  sanction  of  the  Senate  to  that  general  act.  (Cong. 
Rec,  49th  Cong.,  1st  sess.,  p.  110.) 

On  January  14,  1886,  in  the  Senate,  Senator  Morgan  offered  a 
resolution,  to  w^hich  was  attached  a  copy  of  the  Berlin  African  act, 
apparently  in  the  French  original,  and  by  the  terms  of  which  the  act 
was  to  be  referred  to  the  Committee  on  Foreign  Relations,  and  to  be 
translated  under  the  direction  of  the  committee  and  printed;  the 
part  of  the  President's  message  relating  to  the  subject  to  be  also 


172       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

referred  to  the  committee.  The  resohition  was  at  once  adopted.. 
(Cong.  Kec,  49th  Cong.,  1st  sess.,  p.  643.) 

In  speaking  on  his  resolution  Senator  Morgan  stated  that,  in  his 
belief,  there  had  been  "  a  misapprehension  or  misinterpretation  of  this 
act  on  the  part  of  the  United  States,"  and  described  the  final  act  of 
the  conference  as  "  a  great  and  general  act,  the  benefits  of  which  no 
doubt  will  be  felt  by  generations  of  men  through  years  to  come." 

He  asserted  the  entire  freedom  of  the  United  States  as  respects  rati- 
fication, saying : 

Notwithstanding  the  very  great  advantages  which  would  inure  [from  the 
Berlin  African  act]  to  the  people  of  any  commercial  nation  Avho  should  visit 
tliat  country  for  the  purposes  of  trade,  neither  the  preceding  administration. nor 
the  minister  of  the  United  States  who  was  at  Berlin  considered  that  the  Gov- 
ernment of  the  United  States  had  given  its  consent  in  any  way  tU  all  to  become 
a  party  to  the  agreement  as  an  engagement.  A  mere  declaration  has  been 
submitted  to  the  judgment  of  the  enlightened  world  by  this  great  conference 
upon  this  very  important  topic  and  in  regard  to  this  very  important  country; 
and  the  question  whether  we  shall  accede  to  that  agreement  is  one  that  is- 
entirely  a  matter  of  option  on  our  part. 

Concerning  the  manner  of  ratification,  Senator  Morgan,  in  the  same 
speech,  expressed  the  following  opinion : 

It  [the  accession  of  the  United  States  to  the  final  act  of  the  Congo  conference] 
is  something  that  need  not  be  transacted  even  through  the  diplomatic  channels 
of  the  Government.  An  act  of  Congress  originated  by  any  Member  of  this 
body,  or  of  the  other  House,  which  should  declare  that  the  Government  of  tlifr 
United  States  adheres  to  or  accedes  to  that  agreement  would  make  us  a  party 
to  it  precisely  as  it  does  to  postal  conventions  and  various  other  conventions  of 
that  kind  w^hich  have  been  agreed  upon  by  other  nations  and  to  which  we  have 
the  right  to  accede  if  we  choose  or  to  withhold  our  concession  if  we  please. 
(lb.,  p.  644.) 

On  the  same  day  (Jan.  14,  1886)  the  Senate  referred  to  the  Com- 
mittee on  Foreign  Relations  all  those  parts  of  the  President's  message 
relating  to  foreign  affairs.  The  year  allowed  for  ratification  expired 
on  February  26,  1886,  without  any  action  having  been  taken  by  the 
United  States  as  respects  the  ratification  of  the  final  act  of  the  con- 
ference.    (/6.,  p.  644.) 

Although  the  Berlin  African  act  made  no  express  provision  for  the- 
adherence  or  ratification  of  any  State,  which,  after  signing  the  act,, 
should  fail  to  ratify  within  the  year,  this  matter  had  been  informally 
considered  at  the  session  of  the  conference  on  January  31.  At  the 
meeting  of  the  signatory  powers  other  than  the  United  States,  to  ex- 
change ratifications,  held  at  Berlin  on  April  19,  1886,  it  was  agreed 
that  the  United  States  might  adhere  to  the  act  at  any  time,  "  in  the 
manner  and  with  the  effect  provided  in  article  37."  This  article 
authorized  the  adhesion  of  non-signatory  powers  and  provided  that 
adhesion  should  "involve  full  acceptance  of  all  the  obligations  as; 


THE  QUESTIOISr  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       173 

well  as.  admission  to  all  the  advantages  stipulated  for  by  the  present 
general  act."  It  would  appear  to  have  been  the  understanding  that, 
by  such  adhesion,  the  United  States,  as  a  signatory  power,  would  be 
in  the  same  position  as  if  it  had  ratified  the  convention  within  the  time 
allowed.     (/&.,  pp.  251,  252,  303,  323.) 

On  April  28,  1886,  evidently  for  the  purpose  of  placing  in  print  for 
possible  future  action  the  material  in  the  hands  of  the  Government 
relating  to  the  conference,  the  Senate  Committee  on  Foreign  Affairs 
reported  a  resolution  requesting  the  President  to  give  full  informa- 
tion concerning  the  conference,  which  was  at  once  adopted.  The 
President,  in  response  to  this  request,  sent  a  message  to  the  Senate 
on  June  30,  1886,  inclosing  a  report  from  the  Secretary  of  State 
containing  the  proceedings  of  the  conference  and  all  accompanying 
documents.  The  report  was  referred  to  the  Committee  on  Appropri- 
ations and  ordered  to  be  printed.     (/5.,  p.  6316.) 

It  appears  that  no  further  action  has  ever  been  taken  by  the  United 
States  with  reference  to  the  ratification  of  or  adherence  to  the  Berlin 
African  act. 

During  1884  and  1885  the  British  Government  opened  negotiations 
with  all  the  powers  interested  in  the  western  Pacific  islands  for  a  con- 
ference to  concert  regulations  and  measures  relating  to  the  importa- 
tion of  firearms  and  intoxicants  into  the  islands  so  as  to  prevent  abuses 
of  them  by  the  natives.  On  April  11, 1885,  Secretary  of  State  Bayard 
wrote  to  the  British  ambassador,  Mr.  Sackville  West,  as  follows: 

I  have  had  the  honor  to  receive  your  note  of  the  6th  instant,  in  which  you 
refer  to  the  correspondence  heretofore  exchanged  on  the  subject  of  the  supply 
of  arms  and  ammunition  to  the  natives  of  the  western  Pacific  islands,  and 
inform  me  that  all  the  powers  interested  have  now  given  a  general  assent  to 
the  suggestion  for  an  international  agreement  for  the  settlement  of  this  ques- 
tion, with  the  exception  of  the  United  States,  in  view  of  which  Lord  Granville 
has  instructed  you  to  press  for  an  early  communication  of  the  views  of  this  Gov- 
ernment in  the  premises. 

Whilst  recognizing  and  highly  approving  the  moral  force  and  general  propriety 
of  the  proposed  regulations  and  the  responsibility  of  conducting  such  traffic 
under  proper  and  careful  restrictions,  the  Government  of  the  United  States  does 
not  feel  entirely  prepared  to  join  in  the  international  understanding  proposed, 
and  will,  therefore,  for  the  present,  restrain  its  action  in  the  direction  outlined 
by  the  suggested  arrangement  of  a  sound  discretion  in  permitting  traffic  between 
its  own  citizens  in  the  articles  referred  to  and  the  natives  of  the  western  Pacific 
Islands. 

This  action  was  taken  by  the  United  States  a  few  weeks  after  the 
close  of  the  Berlin  African  Conference,  and  at  the  time  when  strong 
objections  were  being  made  in  Congress  to  the  ratification  of  the 
Berlin  act.  A  renewal  of  this  proposition  made  by  Great  Britain 
to  the  United  States  in  1887  was  declined  by  the  United  States.  (Brit. 
Pari.  Papers,  1887,  a^oI.  58,  Cd.  5240.  Western  Pacific;  correspond- 
ence relating  to  proposals  for  an  international  agreement,  etc.) 


174       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

The  Institute  of  International  Law,  at  its  session  held  at  Lau- 
sanne, in  1888,  considered  the  question  of  the  conditions  with  regard 
to  occupation  which  ought  to  be  fulfilled  by  a  civilized  State  in  order 
to  enable  it  to  obtain  a  good  title  in  international  law  to  the  sov- 
ereignty over  the  region  occupied  by  it.  Incidentally  consideration 
was  also  given  to  the  question  of  the  relations  which  the  occupying 
State  ought  to  hold,  under  the  law  of  nations,  both  at  the  time  of 
occupation  and  afterwards,  toward  the  aboriginal  tribes  inhabiting 
the  region.  The  deliberations  of  the  Institute  {Annxiaire^  vol.  10 
(1888-89),  pp.  173-201)  resulted  in  the  adoption  of  the  follownig 
declaration  of  the  views  held  by  it : 

Article  I.  The  occupation  of  a  territory  under  title  of  sovereignty  can  be 
recognized  as  effective  only  in  case  it  fulfills  the  following  conditions : 

1.  The  taking  of  possession  of  a  territory  comprised  within  certain  limits, 
the  act  being  done  in  the  name  of  the  Government ; 

2.  The  official  notification  of  the  taking  of  possession.  The  taking  of  posses- 
sion is  to  be  effected  by  the  establishment  of  a  local  responsible  government 
j>rovided  with  means  sufficient  for  maintaining  order  and  assuring  the  regular 
exercise  of  its  authority  within  the  limits  of  the  occupied  territory.  These 
means  may  be  borrowed  from  the  institutions  existing  in  the  occupied  country. 
The  notification  of  the  taking  of  possession  is  made  either  by  publication  in 
the  form  used  by  each  State  for  notification  of  its  official  acts,  or  through 
diplomatic  channels.  It  will  contain  an  approximate  determination  of  the  limits- 
of  the  territory  occupied. 

Art.  II.  The  rules  stated  in  the  above  article  are  applicable  to  the  case 
where  a  power,  without  assuming  the  entire  sovereignty  of  a  territory,  and 
maintaining  with  or  \vithout  restrictions  the  administrative  autonomy  of  the 
aboriginal  tribes,  shall  place  the  territory  under  its  "  protectorate." 

Art.  III.  If  the  taking  of  possession  shall  give  rise  to  claims  founded  on 
anterior  titles,  and  if  the  ordinary  diplomatic  procedure  shall  not  lead  to  aa 
agreement  between  the  parties  interested,  they  will  appeal  to  the  good  offices, 
the  mediation,  or  the  arbitration  of  one  or  several  third  powers. 

Art.  IV.  All  wars  of  extermination  of  aboriginal  tribes,  all  useless  severities, 
and  all  tortures  are  forbidden,  even  by  way  of  reprisals. 

Art.  V.  In  the  territories  had  in  view  by  the  present  declaration,  the  local 
authority  will  respect  or  will  cause  to  be  respected  all  rights,  especially  of 
private  property,  as  well  of  the  aborigines  as  of  foreigners,  and  including  both 
individual  and  collective  rights. 

Art.  VI.  The  local  authority  has  the  duty  of  watching  over  the  conserva- 
tion of  the  aboriginal  populations,  their  education,  and  the  amelioration  of 
their  moral  and  material  condition.  It  will  favor  and  protect,  without  dis 
tinction  of  nationality,  all  the  private  institutions  and  enterprises  created 
and  organized  for  this  purpose,  under  the  reserve  that  the  political  interests- 
of  the  occupying  or  protecting  State  shall  not  be  compromised  or  menaced  by 
the  actions  or  tendencies  of  these  institutions  and  enterprises. 

Art.  VII.  Liberty  of  conscience  is  guaranteed  to  the  aborigines,  as  well  as- 
to  the  nationals  of  the  colonizing  State,  and  to  foreigners.  The  exercise  of 
all  the  forms  of  religious  faith  shall  not  be  subjected  to  any  restriction  or 
hindrance;  provided,  however,  that  practices  contrary  to  the  laws  of  morality 
and  of  humanity  shall  be  prohibited. 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       175 

Art.  VIII.  The  local  authority  shall  make  preparations  for  the  abolition  of 
slavery.  The  sale  or  the  employment  of  slaves  for  domestic  service,  by  others 
than  aborigines,  shall  be  immediately  forbidden. 

Art.  IX.  The  slave  trade  shall  be  forbidden  in  the  whole  extent  of  the  terri- 
tories had  in  view  by  the  present  declaration.  These  territories  shall  not  be 
used  as  markets,  nor  ways  of  transit,  for  the  sale  of  slaves;  and  the  most 
rigorous  measures  shall  be  taken  against  those  wiio  engage  in  the  traffic  or 
are  interested  in  it.  The  introduction  and  the  internal  commerce  in  cangiies 
and  other  instruments  of  torture  for  use  by  proprietors  of  slaves  shall  be  pre- 
vented. 

Art.  X.  The  sale  of  intoxicating  liquors  shall  be  regulated  so  as  to  preserve 
the  aboriginal  populations  from  the  evils  resulting  from  their  abuse. 

( Cf.  Resolutions  of  the  Institute  of  International  LaAv  dealing  with 
the  Law  of  Nations,  edited  by  James  Brown  Scott,  pp.  84-86.) 

The  following  propositions  were  brought  before  the  Institute,  but 
failed  to  receive  its  approval  (Annuaire,  vol.  10,  pp.  171-201)  : 

That  aboriginal  tribes  and  the  territory  inhabited  by  them  are  out- 
side "the  community  of  the  law  of  nations"  (pp.  171~181). 

That  occupation  by  a  civilized  State  of  territory  in  Africa  not  oc- 
cupied by  any  other  civilized  State  ought  to  have  as  its  basis  arrange- 
ments with  the  chiefs  of  the  aboriginal  tribes  (pp.  181,  182). 

That  "  sovereignty  "  over  aboriginal  tribes  is  a  relationship  differ- 
ing from  "protectorate"  in  character  and  not  merely  in  form  (pp. 
184,  185,  189,  190). 

That  the  aborigines  as  well  as  the  European  colonists  should  be 
prohibited  from  holding  aborigines  in  domestic  slavery  (p.  195). 

That  countries  inhabited  by  aboriginal  tribes  under  the  sovereignty 
of  a  civilized  State  should  be  submitted  to  the  regime  of  the  Uni- 
versal Postal  Union  (p.  198). 

That  in  all  such  countries  there  should  be  equality  of  rights  of 
trade  and  intercourse  for  all  nations  on  the  land  and  of  navigation 
on  navigable  rivers  (p.  199). 

That  the  countries  under  the  sovereignty  of  civilized  States  whose 
title  has  been  obtained  by  occupation  should  have  the  faculty  of  being 
declared  neutral  by  the  State  exercising  the  sovereignty — the  neu- 
trality to  be  permanent  or  temporary — in  which  case  all  the  States 
should  be  bound  to  respect  the  neutrality;  that  in  case  war  should 
arise  outside  these  countries  and  a  State  which  had  so  declared  neu- 
trality for  its  colonies  should  be  involved,  all  the  other  States  should 
exercise  their  good  offices  to  have  the  neutrality  maintained;  and 
that,  in  case  of  disputes  occurring  between  States  concerning  or 
originating  in  colonies,  the  parties  should  submit  to  mediation  or 
arbitration  before  entering  upon  hostilities  (pp.  200,  201). 

On  June  14,  1889,  shortly  before  the  Brussels  African  Conference 
met,  the  United  States,  Germany,  and  Great  Britain,  after  confer- 
ences at  Washington  and  Berlin,  concluded  a  convention  for  a  joint 


176       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

control  over  the  interests  of  these  powers  in  the  Samoan  Islands.     By 
this  convention  it  was  declared : 

Tliat  the  islands  of  Samoa  are  neutral  territory  in  which  the  citizens  of  the 
three  signatory  powers  have  equal  rights  of  residence,  trade,  and  personal  pro- 
tection. The  three  powers  recognize  the  independence  of  the  Samoan  Govern- 
ment and  the  free  right  of  the  nations  to  elect  their  chief  or  king  and  choose 
their  form  of  government  according  to  their  own  laws  and  customs.  Neither  of 
the  powers  shall  exercise  any  separate  control  over  the  islands  or  the  govern- 
ment thereof. 

The  convention  provided  that  the  joint  control  was  to  be  exercised 
by  a  chief  justice  of  Samoa  "  named  by  the  signatory  powers  in  com- 
mon accord,"  to  w^hom  w^as  delegated  "  jurisdiction  of  all  questions 
arising  under  this  general  act."  By  the  convention  the  future  aliena- 
tion of  land  without  the  consent  of  the  chief  justice  was  forbidden, 
with  certain  exceptions,  and  a  land  commission  to  settle  previous 
claims  was  constituted.  The  chief  executive  magistrate  of  Apia, 
appointed  by  agreement  of  the  powders,  and  the  consuls  of  the  signa- 
tory powers  in  Apia  were  given  control  of  European  interests  of  a 
private  character.  The  importation  of  arms  and  ammunition  was 
forbidden,  subject  to  the  right  of  the  Samoan  Government  to  import 
arms  for  maintaining  order.  A  provision  of  the  convention  pro- 
hibited the  sale,  gift,  or  offer  of  intoxicants  to  any  native  Samoan 
or  any  South  Sea  Islander  resident  in  Samoa.  Samoa  was  to  assent 
to  the  convention,  and  the  convention  was  to  be  amendable  by  request 
of  either  power  after  three  years. 

The  plenipotentiaries  of  the  three  powers  which  entered  into  the 
Samoan  convention  were  the  same  who  had  rep^^esented  them  at  the 
Berlin  African  Conference — Mr.  Kasson,  for  the  United  States ;  Sir 
Edward  Malet,  for  Great  Britain;  and  Prince  Bismarck,  for  Ger- 
many. The  States  represented  by  these  three  distinguished  diplo- 
mats and  statesmen,  on  their  advice,  entered  into  this  arrangement, 
converting  the  Samoan  Islands  into  an  international  reservation  un- 
der an  international  control  participated  in  equalh'  by  the  three 
powers.  The  experiment  proved  the  impracticability  of  such  an 
arrangement.  The  colonists  would  not  submit  to  the  tripartite  sover- 
eignly, and  the  civil  wars  of  the  Samoan  aborigines  growing  out  of 
their  disagreements  over  the  election  of  their  chief  further  compli- 
cated the  situation.  The  arrangement  was  abolished  in  1900.  Great 
Britain  withdreAv  from  the  islands,  receiving  compensation  elsewhere, 
iind  Germany  and  the  United  States  partitioned  the  islands  into 
regions  under  their  separate  sovereignty ;  the  United  States  receiving 
Tutuila  in  the  partition.  The  application  of  the  principle  of  joint 
international  control  of  contiguous  or  adjacent  colonies  inhabited  by 
aboriginal  tribes,  instead  of  the  principle  of  separate  national  control 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       177 

under  joint  international  surveillance,  has  by  some  been  regarded 
as  the  cause  of  the  failure  of  this  experiment. 

The  Brussels  African  conference  was  convened,  as  stated  in  the 
preamble  of  the  final  act,  at  the  invitation  of  the  Belgian  Govern- 
ment, in  agreement  with  the  British  Government.  The  following 
17  states  participated  in  the  conference :  Great  Britain,  France,  Ger- 
many, Italy,  Spain,  Belgium,  Holland,  Portugal,  the  United  States, 
Eussia,  Austria-Hungary,  Denmark,  Sweden  and  Norway,  Turkey, 
Persia,  the  Independent  State  of  the  Congo,  and  Zanzibar.  The  ses- 
sions of  the  conference  began  on  November  18,  1889,  and  were  con- 
tinued, with  various  intermissions,  until  July  2,  1890,  when  the  final 
act  was  signed. 

The  conference  was  convened  in  response  to  a  world-wide  demand 
for  international  protection  of  the  African  aborigines,  based  on 
revelations  of  the  inhumanities  practiced  in  the  aboriginal  regions 
of  Africa  in  the  prosecution  of  the  slave  trade,  of  the  degeneration  of 
the  aborigines  through  the  use  of  intoxicating  liquors,  and  of  the 
anarchy  and  destruction  caused  by  their  ownership  of  firearms. 
Slave  trading,  though  almost  ended  on  the  sea,  still  continued  in  the 
Indian  Ocean,  and  further  measures  for  the  prevention  of  the  traffic 
within  this  maritime  area  were  necessary.  The  trade  carried  on 
within  Africa,  it  was  evident,  could  be  stopped  only  by  the  unanimous 
cooperation  in  repressive  measures  of  all  the  powers  exercising  sover- 
eignty or  influence  in  the  regions  inhabited  by  aboriginal  tribes.  The 
supply  of  alcoholic  liquors  and  firearms  to  the  aborigines  could  be 
prevented  only  by  the  unanimous  cooperation  of  all  the  civilized 
States  trading  with  Africa  in  restricting  importation  of  these  in- 
struments of  degeneration  and  destruction,  coupled  with  the  unani- 
mous cooperation  of  all  the  States  exercising  sovereignty  or  in- 
fluence over  the  aboriginal  tribes  within  the  territory  of  Africa  and 
of  the  States  and  self-governing  colonies  of  European  settlement 
bordering  upon  these  territories,  in  restricting  or  prohibiting  the 
manufacture  and  distribution  of  these  articles.  Thus  the  questioub 
under  consideration  involved,  to  some  extent,  international  juris- 
diction and  surveillance  of  the  whole  continent  of  Africa.  The 
problems  which  had  been  insoluble  to  the  Berlin  African  conference, 
which  was  confined  to  a  consideration  and  application  of  the  prin- 
ciples of  common  international  use  to  the  Kivers  Congo  and  Niger, 
of  common  international  commerce  to  the  basin  of  the  Congo,  and 
of  acquisition  of  sovereignty  by  civilized  States  by  occupation  of 
territory  inhabited  by  aboriginal  tribes  on  the  west  coast  of  Africa, 
were  to  be  solved  by  a  conference  dealing  with  Africa  as  a  whole, 
considered  as  a  region  to  some  extent  under  international  jurisdiction. 
89581—19 12 


178       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

In  the  preamble  of  the  Brussels  African  act  the  motives  and 
objects  of  the  contracting  powers  were  thus  stated: 

Being  equally  actuated  by  the  firm  intention  of  putting  an  end  to  the  crimes 
and  devastation  engendered  by  the  traffic  in  African  slaves,  of  efficiently  pro- 
tecting the  aboriginal  population  of  Africa,  and  of  securing  for  that  vast  con- 
tinent the  benefits  of  peace  and  civilization ; 

Wishing  to  give  fresh  sanction  to  the  decisions  already  adopted  in  the  same 
sense  and  at  different  times  by  the  powers,  to  complete  the  results  secured  by 
them,  and  to  draw  up  a  body  of  measures  guaranteeing  the  accomplishment  of 
the  work  which  is  the  object  of  their  common  solicitude,  have  resolved  *  *  * 
to  convene  for  this  purpose  a  conference  at  Brussels,  etc. 

In  the  body  of  the  act,  the  following  general  principles  were  de- 
clared as  those  which  the  powers  w^ere  to  adopt  and  cause  to  be 
adopted : 

Article  I.  The  powers  declare  that  the  most  effective  means  of  counteracting 
the  slave  trade  in  the  interior  of  Africa  are  the  following : 

1.  Progressive  organization  of  the  administrative,  judicial,  religious,  and 
military  services  in  the  African  territories  placed  under  ithe  sovereignty  or  pro- 
tectorate of  civilized  nations. 

2.  The  gradual  establishment  in  the  interior,  by  the  powers  to  which  the 
territories  are  subject, "of  strongly  occupied  stations,  in  such  a  way  as  to  make 
their  protective  or  repressive  action  effectively  felt  in  the  territories  devastated 
by  slave  hunting. 

3.  The  construction  of  roads,  and  in  particular  of  railways,  connecting  the 
advanced  stations  with  the  coast,  and  permitting  easy  access  to  the  inland 
waters,  and  to  such  of  the  upper  courses  of  the  rivers  and  streams  as  are 
broken  by  rapids  and  cataracts,  with  a  view  to  substituting  economical  and 
rapid  means  of  transportation  for  the  present  system  of  carriage  by  men. 

4.  Establishment  of  steamboats  on  the  inland  navigable  waters  and  on  the 
lakes,  supported  by  fortified  posts  established  on  the  banks. 

5.  Establishment  of  telegraphic  lines,  insuring  the  communication  of  the 
posts  and  stations  with  the  coast  and  with  the  administrative  centers. 

6.  Organization  of  expeditions  and  flying  columns,  to  keep  up  the  communica- 
tion of  the  stations  with  each  other  and  with  the  coast  to  support  repressive 
action,  and  to  insure  the  security  of  high  roads. 

7.  Restriction  of  the  importation  of  firearms,  at  least  those  of  modern  pat- 
tern, and  of  ammunition,  throughout  the  entire  extent  of  the  territory  in  which 
the  slave  trade  is  carried  on. 

Art.  II,  The  stations,  the  inland  cruisers  organized  by  each  power  in  its 
waters,  and  the  posts  which  serve  as  ports  of  register  for  them  all,  shall  in- 
dependently of  their  principal  task,  which  is  to  prevent  the  capture  of  slaves 
and  intercept  the  routes  of  the  slave  trade,  having  the  following  subsidiary 
duties : 

1.  To  support  and,  if  necessary,  to  serve  as  a  refuge  for  the  native  popula- 
tion, whether  placed  under  the  sovereignty  or  the  protectorate  of  the  State  to 
which  the  station  is  subject,  or  independent,  and  temporarily  for  all  other 
natives,  in  case  of  imminent  danger ;  to  place  the  population  of  the  first  of  these 
categories  in  a  position  to  cooperate  for  their  own  defense ;  to  diminish  intes- 
tine wars  between  tribes  by  means  of  arbitration ;  to  initiate  them  in  agricul- 
tural labor  and  the  industrial  arts  so  as  to  increase  their  welfare;  to  raise 
them  to  civilization  and  bring  about  the  extinction  of  barbarous  customs,  such 
as  cannibalism  and  human  sacrifices. 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OP  NATIONS.       179 

2.  To  give  aid  and  protection  to  commercial  enterprises;  to  watch  over  their 
legality  *  *  *  especially  [by]  controlling  contracts  for  service  with  na- 
tives ;  and  to  prepare  the  way  for  the  foundation  of  permanent  centers  of  culti- 
vation and  of  commercial  settlements. 

3.  To  protect,  without  distinction  of  creed,  the  missions  which  are  already 
or  that  may  hereafter  be  established. 

4.  To  provide  for  the  sanitary  service  and  to  extend  hospitality  and  help  to 
explorers  and  to  all  who  take  part  in  Africa  in  the  work  of  repressing  the  slave 
trade, 

B}^  articles  3  and  4  the  powers  "exercising  a  sovereignty  or  a  pro- 
tectorate in  Africa"  confirmed  their  previous  obligations,  indi- 
vidually and  collectively,  to  abolish  the  slave  trade  and  agreed  to 
hold  themselves  responsible  in  this  respect  for  companies  chartered 
by  them,  and  to  aid  and  protect  private  associations  and  enterprises 
organized  for  repression  of  the  slave  trade. 

The  next  article  was  as  follows : 

Art.  V.  The  contracting  powers  pledge  themselves,  unless  this  has  already 
been  provided  for  by  laws  in  accordance  with  the  spirit  of  the  present  article, 
to  enact  or  propose  to  their  respective  legislative  bodies,  in  the  course  of  one 
year  at  the  latest  from  the  date  of  the  signing  of  the  present  general  act,  a 
law  rendering  applicable,  on  the  one  hand,  the  provisions  of  their  penal  laws 
concerning  grave  offences  against  the  person,  to  the  organizers  and  abettors  of 
slave  hunting,  and  to  those  guilty  of  mutilating  male  adults  and  children,  and 
to  all  persons  taking  part  in  the  capture  of  slaves  by  violence ;  and,  on  the 
other  hand,  the  provisions  relating  to  offences  against  individual  liberty,  to 
carriers  and  transporters  of,  and  to  dealers  in,  slaves. 

The  accessories  and  accomplices  of  the  different  categories  of  slave  captors 
and  dealers  above  specified  shall  be  punished  with  penalties  proportionate  to 
those  incurred  by  the  principals. 

Guilty  persons  who  may  have  escaped  from  the  jurisdiction  of  the  authorities 
of  the  country  where  the  crimes  or  offences  have  been  committed  shall  be 
arrested  either  on  communication  of  the  incriminating  evidence  by  the  authori- 
ties who  have  ascertained  the  violation  of  the  law,  or  on  production  of  other 
proof  of  guilt  by  the  power  in  whose  territory  they  may  have  been  discovered, 
and  shall  be  kept,  without  other  formality,  at  the  disposal  of  the  tribunals 
competent  to  try  them. 

The  powers  shall  communicate  to  one  another,  with  the  least  possible  delay, 
the  laws  or  decrees  existing  or  promulgated  in  execution  of  the  present  article. 

By  articles  8  to  14  the  importation  of  firearms  was  prohibited, 
within  a  specified  zone,  for  a  period  of  12  years,  subject  to  renew^al. 
It  was  recited  that  "  the  experience  of  all  nations  "  had  "  clearly 
proved  that  the  preservation  of  the  African  population,  w^iose  ex- 
istence it  is  the  express  wish  of  the  powers  to  protect,  is  a  radical  im- 
possibility if  measures  restricting  the  trade  in  firearms  and  ammuni- 
tion are  not  adopted."  The  zone  within  which  these  restrictions  were 
to  be  applied  was  thus  described  in  article  8  : 

The  territories  comprised  between  the  twentieth  parallel  of  north  latitude 
and  the  twenty-second  parallel  of  south  latitude,  and  extending  westward  to  the 
Atlantic  Ocean  and  eastward  to  the  Indian  Ocean  and  its  dependencies,  including 
the  islands  adjacent  to  the  coast  within  100  nautical  miles  from  the  shore. 


180       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

This  zone,  thus  included  a  Middle  Africa,  according  to  the  widest 
interpretation  of  the  term,  extending  from  the  Moorish  and  Arabic 
settlements  in  the  north,  under  the  sovereignty  or  protectorate  of  the 
civilized  powers,  to  the  South  African  States  and  British  colonies. 

By  articles  90  to  95  the  prohibition  or  reguliation  of  the  importation 
of  and  traffic  in  intoxicating  liquors  within  this  same  zone  was  agreed 
to  by  the  signatory  powers ;  the  prohibition  to  be  put  in  force  wherever 
the  use  of  distilled  liquors  should  not  have  been  developed,  or  where 
the  religion  of  the  natives  enjoined  disuse,  and  a  uniform  import 
and  excise  duty  being  established  as  respects  the  regions  where 
liquors  were  used  by  the  natives;  the  arrangement  regarding  duties 
and  excises  being  subject  to  revision  at  specified  periods. 

It  was  realized  in  the  conference  that  the  effectiveness  of  the  final 
act  w^ould  largely  depend  upon  the  provisions  made  for  surveillance  of 
its  operation  and  execution,  and  the  general  recognition  of  this  neces- 
sity led  to  the  insertion  in  the  final  act  of  provisions  for  a  qualified 
surveillance,  which  were  as  follows : 

Chapter  V.  Institutions  Intended  to  Insure  the  Execution  of  the  General 

Act. 

section  I. OF  THE  INTERNATIONAL   MARITIME  OFFICE. 

Art.  LXXIV.  In  accordance  with  the  provisions  of  Article  XXVII,  an  inter- 
national office  shall  be  instituted  at  Zanzibar,  in  which  each  of  the  signatory 
powers  may  be  represented  by  a  delegate. 

Art.  LXXV.  The  office  shall  be  constituted  as  soon  as  three  powers  have  ap- 
pointed their  representatives.  It  shall  draw  up  regulations  fixing  the  manner  of 
exercising  its  functions.  These  regulations  shall  immediately  be  submitted  to 
the  approval  of  such  signatory  powers  as  shall  have  signified  their  intention  of 
being  represented  in  this  office.  They  shall  decide  in  this  respect  within  the 
shortest  possible  tiine. 

Art.  LXXVI.  The  expenses  of  this  institution  shall  be  divided  in  equal  parts 
among  the  signatory  powers  mentioned  in  the  preceding  article. 

Art.  LXXVII.  The  object  of  the  office  at  Zanzibar  shall  be  to  centralize 
all  documents  and  Information  of  a  nature  to  facilitate  the  repression  of  the 
slave  trade  in  the  maritime  zone.  For  this  purpose  the  signatory  powers  en- 
gage to  forward  within  the  shortest  time  possible: 

1.  The  documents  specified  in  Article  XLI ; 

2.  Summaries  of  the  reports  and  copies  of  the  minutes  referred  to  in  Article 
XLVIII ; 

3.  The  list  of  the  territorial  or  consular  authorities  and  special  delegates 
competent  to  take  action  as  regards  vessels  seized  according  to  the  terms  of 
Article  XLIX ; 

4.  Copies  of  judgments  and  condemnations  in  accordance  with  Article  LVIII ; 

5.  All  information  that  may  lead  to  the  discovery  of  persons  engaged  in  the 
slave  trade  in  the  above-mentioned  zone. 

Art.  LXXVIII.  The  archives  of  the  office  shall  always  be  open  to  the 
naval  ofllcers  of  the  signatory  powers  authorized  to  act  within  the  limits  of 
the  zone  defined  by  Article  XXI,  as  well  as  to  the  territorial  or  judicial  authori- 
ties, and  to  consuls  specially  designated  by  their  Governments. 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       181 

The  office  shall  supply  to  foreign  officers  and  agents  authorized  to  consult 
its  archives  translations  into  a  Eurojiean  language  of  documents  written  in 
an  Oriental  language. 

It  shall  make  the  communications  provided  for  in  Article  XLVIII. 

Art.  LXXIX.  Auxiliary  offices  in  communication  with  the  office  at  Zan- 
zibar may  be  established  in  certain  parts  of  the  zone,  in  pursuance  of  a  previous 
agreement   between   the  interested   powers. 

They  shall  be  composed  of  delegates  of  these  powers,  and  established  in  ac- 
cordance with  Articles  LXXV,  LXXVI,  and  LXXVIII. 

The  documents  and  information  specified  in  Article  LXXVII,  so  far  as  they 
may  relate  to  a  part  of  the  zone  specially  concerned,  shall  be  sent  to  them 
directly  by  the  territorial  and  consular  authorities  of  the  region  in  question, 
but  this  shall  not  exempt*  the  latter  from  the  duty  of  communicating  the  same 
to  the  office  at  Zanzibar,  as  provided  by  the  same  article. 

Art.  LXXX.  The  office  at  Zanzibar  shall  prepare  in  the  first  two  months  of 
every  year  a  report  of  its  own  operations  and  of  those  of  the  auxiliary  offices 
during  the  past  12  months. 

SECTION    ir.    OF    THE    EXCHANGE    BETWEEN    THE    GOVERNMENTS    OF    DOCUMENTS    AND 
INFORMATION    RELATING   TO    THE    SLAVE   TRADE. 

Art.  LXXX  I.  The  powers  shall  communicate  to  one  another,  to  the  fullest 
extent  and  with  the  least  delay  that  they  shall  consider  possible : 

1.  The  text  of  the  laws  and  administrative  regulations,  existing  or  enacted 
by  application  of  the  clauses  of  the  present  general  act ; 

2.  Statistical  information  concerning  the  slave  trade,  slaves  arrested  and 
liberated,  and  the  traffic  in  firearms,  ammunition,  and  alcoholic  liquors. 

Art.  LXXX II.  The  exchange  of  these  documents  and  information  shall  be 
centralized  in  a  special  office  attached  to  the  foreign  office  at  Brussels. 

Art.  I^XXXIII.  The  office  at  Zanzibar  shall  forward  to  it  every  year  the 
report  mentioned  in  Article  LXXX,  concerning  its  operations  during  the  past 
year,  and  concerning  those  of  the  auxiliary  offices  that  may  have  been  estab- 
lished in  accordance  with  Article  LXXIX. 

Art.  LXXXIV.  The  documents  and  information  shall  be  collected  and  pub- 
lished periodically,  and  addressed  to  all  the  signatory  powers.  This  publica- 
tion shall  be  accompanied  every  year  by  an  analytical  table  of  the  legislative, 
administrative,  and  statistical  documents  mentioned  in  Articles  LXXXI  and 
LXXXIII. 

Art.  LXXXV.  The  office  expenses  as  well  as  those  incurred  in  correspond- 
ence, translation,  aifd  printing,  shall  be  shared  by  all  the  signatory  powers, 
and  shall  be  collected  through  the  agency  of  the  department  of  the  foreign 
office  at  Brussels. 

When  the  question  of  surveillance  was  pending  before  the  confer- 
ence, a  project  for  surveillance  of  a  more  specific  kind  was  introduced 
by  the  British  Government.  The  British  proposition  was  regarded 
by  the  French  Government  as  unsuitable  for  immediate  adoption,  but 
possibly  suitable  to  be  adopted  at  a  later  period  in  the  development 
of  Africa.  It  was  thereupon  agreed  that  though  the  committee  on 
editing  should  recommend  to  the  conference  the  plan  of  qualified 
surveillance  which  appears  in  the  final  act,  it  should  carefully  re- 
vise the  British  project  so  as  to  give  it  a  form  acceptable  to  the  con- 


182       THE  QUESTION^  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

ference  as  a  project  for  future  adoption,  and  that  the  project  should 
be  spread  upon  the  record  of  the  proceedings  accompanied  by  a  reso- 
lution expressing  approval  of  it  by  the  conference  and  declaring  its 
opinion  that  at  a  future  time,  when  the  situation  should  permit,  the 
plan  of  surveillance  should  be  put  in  force  by  international  accord. 
The  opposition  to  the  more  extended  plan  of  surveillance  having 
been  voiced  by  France,  M.  Bouree,  the  French  plenipotentiary,  also 
voiced  the  sentiment  of  the  conference  in  favor  of  agreeing  upon  a 
plan  for  a  more  specific  surveillance  and  recommending  it  for  future 
adoption.  In  speaking  upon  the  subject  on  behalf  of  the  French 
Government  he  said  that  he  considered  that  it  would  be  best  not 
to  establish  immediately  such  a  surveillance  as  the  project  proposed, 
but  rather  "  to  make  this  project  the  object  of  a  favorable  opinion 
(voeu)  inserted  in  the  proceedings  of  the  conference,  reserving  for 
the  subsequent  determination  of  the  powers  the  choice  of  the  moment 
for  putting  the  plan  into  execution."  "  When  that  moment  should 
arrive,"  he  said,  "  the  Governments  Avould  find  at  hand  a  system  al- 
ready prepared,  which  would  reflect  faithfully  the  views  of  the  con- 
ference on  this  subject."  (French  Yellow  Book,  Proceedings  of  the 
Brussels  African  Conference,  1890,  pp.  262,  278,  279.) 

At  the  session  of  the  conference  on  May  22,  1890,  the  president. 
Baron  Lambermont  of  Belgium,  called  attention  to  the  arrangement 
made  in  the  committee,  and  accordingly  the  project  was  read  and 
inserted  in  the  proceedings. 

The  project  thus  perpetuated  by  being  spread  upon  the  records  of 
the  conference  was  as  follows: 

1.  There  shall  be  established  at  Brussels  an  international  bureau  which  shall 
have  as  its  function  the  centralizing  of  the  exchange  between  the  powers  of 
the  documents  and  informative  matter  mentioned  hereinafter,  and  the  use  of 
this  material  as  a  means  of  exercising  surveillance  over  the  execution  of  the 
clauses  of  the  present  treaty  and  of  the  measures  of  amelioration  which  the 
treaty  contemplates. 

2.  The  representatives  at  Brussels  of*  the  signatory  powers  who  shall  have 
expressed  the  desire  to  participate  shall  constitute,  with  a  representative  of 
Belgium,  the  council  of  administration  of  the  international  bureau.  They  shall 
hold  meetings  at  least  twice  each  year,  in  the  months  of  *  *  *  upon  the 
call  of  the  representative  of  [the  King  of  Belgium],  for  the  purpose  of  receiv- 
ing and  considering  the  analytical  statement  provided  for  hereinafter,  and  the 
report  concerning  the  operations  of  the  bureau,  and  for  the  purpose  of  approv- 
ing them  in  tenor.  The  organic  regulations  concerning  the  mode  of  nomina- 
tion and  the  salaries  of  the  employees  of  the  central  bureau,  their  functions 
and  their  liability  as  respects  expenses  and  receipts,  as  well  as  concerning  the 
measures  of  execution  of  article  7,  shall  be  made  the  object  of  a  separate 
protocol. 

3.  The  council  of  administration  of  the  bureau  at  Brussels  shall  exercise  a 
right  of  control  over  the  administrative  and  financial  oi>erations  of  the  inter- 
national bureau  at  Zanzibar,  as  well  as  over  the  auxiliary  agencies.  It  shall 
approve  the  organic  regulations  of  the  bureau  and  its  budget. 


THE  QUESTION  OF  ABOBIGINES  IN  THE  LAW  OF  NATIONS.       183 

4.  The  powers  will  communicate  to  the  bureau  to  the  greatest  extent  and 
with  the  least  delay  possible — 

(a)  The  text  of  the  laws  and  administrative  regulations  which  now  exist  or 
which  may  be  enacted  in  pursuance  of  the  provisions  of  the  present  act. 

(&)   Information  relating  to  the  slave  trade,  to  slaves  taken  from  their  captors' 
and  liberated,  and  to  traffic  in  arms,  munitions  of  war,  and  alcoholic  liquors. 

5.  The  international  bureau  established  at  Zanzibar  shall  cause  to  oe 
furnished  each  year  the  report  mentioned  in  the  general  act  regarding  its 
operations  during  the  preceding  year  and  those  of  the  auxiliary  bureaus  which 
shall  be  established  conformably  to  the  act,  as  well  as  the  statistical  tables 
covering  the  last  previous  statistical  period. 

6.  The  documents  and  information  shall  be  collected  and  published  m 
periodical  and  pamphlet  form,  and  sent  to  all  the  signatory  or  adherent  powers. 
Tliis  publication  will  be  accompanied  each  year  by  an  analytical  exposition  of 
the  legislative,  administrative,  and  statistical  documents  mentioned  above. 

7.  The  expenses  of  the  central  bureau  at  Brussels  shall  be  supported  in  equal 
parts  by  all  the  powers  which  shall  have  manifested  a  desire  to  be  represented 
in  the  Council  of  Administration.  The  expenses  shall  not  exceed  —  francs  per 
year.     (lb.,  pp.  278,  279.) 

The  following  resolution  on  the  subject  was  then  introduced  by  the 
president  and  adopted: 

The  conference,  having  taken  cognizance  of  the  project  which  the  commission 
has  prepared,  upon  the  initiative  of  the  plenipotentiaries  of  Great  Britain,  for 
the  establishment  of  an  international  bureau  to  be  created  at  Brussels,  with  func- 
tions more  extended  than  those  delegated  by  chapter  5,  paragraph  2,  of  the 
general  act,  in  order  to  permit  the  powers  to  exercise  surveillance  over  the 
execution  of  the  treaty  and  to  make,  when  needful,  the  necessary  amendments, 
expresses  the  wish  that  this  institution  may  be  called  into  existence  to  replace 
the  bureau  provided  for  in  the  act  at  a  time  in  the  future  when,  by  common 
jiccord,  the  powers  shall  have  recognized  that  circumstances  render  possible  the 
adoption  of  this  measure. 

The  plenipotentiary  of  Great  Britain  (Lord  Vivian)  thereupon 
made  the  following  declaration: 

The  [British]  Government  regrets  that  the  [French]  Government  has  not 
found  itself  able,  at  the  present  time,  to  consent  to  the  insertion  in  the  general 
act  of  the  proposition  submitted  to  the  commission  by  the  British  plenipoten- 
tiary, according  to  Which  more  extended  functions  would  be  delegated  to  the 
central  bureau  at  Brussels.  In  consenting  that  this  proposition  shall  be  spread 
upon  the  records  of  the  proceedings  of  the  conference  the  [British]  Government 
can  only  hope  that  the  moment  is  not  far  distant  when  it  will  be  adopted. 

Mr.  Bouree  stated  that  he  was  "  the  more  appreciative  of  the  acqui- 
escence given  by  the  British  plenipotentiaries  to  the  wish  expressed  by 
the  conference,  inasmuch  as  the  statements  previously  made  by  Lord 
Vivian  had  evidenced  the  importance  which  the  British  Government 
attached  to  the  project,  which  it  had  caused  to  be  introduced."  (/&., 
pp.  247-249.) 

The  final  act,  as  will  have  been  noticed,  made  no  adequate  provision 
for  the  financial  support  of  the  institutions  of  surveillance.  By 
article  86,  the  expenses  of  the  bureau  at  Zanzibar  were  to  be  "  divided 


184       THE  QUESTION  OF  ABOEIGINES  IN  THE  LAW  OF  NATIONS. 

in  equal  parts  among  the  signatory  powers  mentioned  in  the  pre- 
ceding article  " — that  is,  by  the  three  or  more  powers  which  should 
elect  to  send  representatives  to  participate  in  the  Zanzibar  bureau. 
The  "  office  expenses  "  of  the  "  special  office  attached  to  the  foreign 
office  at  Brussels,"  "  as  well  as  those  incurred  in  correspondence,  trans- 
lation, and  printing,"  were  to  be  "  shared  by  all  the  signatory  powers," 
and  were  to  be  "collected  through  the  agency  of  the  department 
of  the  foreign  office  at  Brussels." 

A  discussion  was  had  at  the  session  of  the  conference  of  June  16, 
1890,  as  to  how  these  expenses  were  to  be  "  shared,"  but  no  conclusion 
was  reached.  (76.,  pp.  357,  858.)  The  conference  ended  without 
further  action  in  this  respect. 

It  appears  that  the  special  office  to  be  attached  to  the  foreign 
office  at  Brussels  was  never  instituted,  or,  at  least,  that  it  has  never 
exercised  the  functions  intended  by  the  final  act. 

The  Brussels  African  act  was  ratified  by  the  United  States  w^ith 
the  following  proviso,  which  was  inserted  by  the  Senate  by  making 
it  a  part  of  its  resolution  advising  and  consenting  to  the  ratification : 

The  United  States,  having  neither  possessions  nor  protectorates  in  Africa, 
hereby  disclaims  any  intention,  in  ratifying  this  treaty,  to  indicate  any  interest 
whatsoever  in  the  possessions  or  protectorates  established  or  claimed  on  that 
continent  by  the  other  powers,  or  any  approval  of  the  wisdom,  expediency,  or 
lawfulness  thereof,  and  does  not  join  in  any  expressions  in  the  said  general  act 
which  might  be  construed  as  such  a  declaration  or  acknowledgment. 

(For  the  Brussels  African  act,  see  Treaties  and  Conventions  of  the 
United  States,  vol.  2,  pp.  1964-1992.) 

While  the  provisions  of  the  Brussels  African  act  relating  to  the 
suppression  of  the  slave  trade  and  the  restriction  of  the  traffic  in 
alcoholic  liquors  and  firearms  have  since  been  made  the  subject  of 
international  conventions  and  accords,  the  provisions  of  the  act  by 
which  the  signatory  and  adherent  powers  recognized  the  duty  of 
guardianship  over  aborigines  have  not  been  made  the  subject  of  fur- 
ther international  consideration.  Inasmuch,  however,  as  these  provi- 
sions were  expressly  based  upon  those  on  the  same  subject  in  the 
Berlin  African  act,  and  were  in  furtherance  of  those  provisions ;  and 
inasmuch  as  the  United  States,  though  it  has  not  ratified  the  Berlin 
act,  did  ratify  the  Brussels  act,  the  Brussels  act  has  served  to  enable 
the  United  States  to  cooperate  in  all  movements;  for  the  amelioration 
of  the  aborigines  in  Africa,  and  to  base  itself  upon  the  provisions  on 
this  subject  contained  in  the  Berlin  act  as  well  as  on  those  contained 
in  the  Brussels  act. 

At  the  time  when  the  matter  of  the  cession  to  Belgium  of  the  Inde- 
pendent State  of  the  Congo  was  pending,  in  the  years  1907  and  1908, 
the  United  States,  on  account  of  reports  concerning  unjust  treatment 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       185 

of  aborigines  in  the  Congo  State,  took  action  intended  to  insure  the 
international  guardianship  of  the  aborigines,  basing  its  action  on 
articles  2  and  5  of  the  Brussels  African  act.  The  Department  of 
State  regarded  these  articles  as  a  repetition  and  enforcement  of  the 
provisions  of  the  Berlin  African  act  relating  to  the  guardianship  of 
aborigines,  so  as  to  make  the  United  States,  morally  though  not 
legally,  an  adherent  of  the  Berlin  African  act  so  far  as  it  concerns 
the  guardianship  of  aborigines.  On  January  15,  1907,  Secretary  of 
State  Root,  in  a  dispatch  to  Mr.  Wilson,  United  States  minister  to 
Belgium,  said : 

Our  attitude  toward  Congo  question  reflects  deep  interest  of  all  classes  of 
American  people  in  the  amelioration  of  conditions.  The  President's  interest  in 
watching  the  trend  toward  reform  is  coupled  with  earnest  desire  to  see  full 
performance  of  the  obligations  of  articles  2  and  5  of  the  slave-trade  act,  to 
which  we  are  a  party.  We  will  cheerfully  accord  all  moral  support  toward 
these  ends,  especially  as  to  all  that  affects  involuntary  servitude  of  the  natives. 
(Foreign  Relations  of  the  United  States,  1907,  pt.  2,  p.  799.) 

On  December  16,  1907,  in  a  dispatch  to  Minister  Wilson,  Secretary 
of  State  Root  said : 

Our  attitude  and  purpose  rest  on  the  broad  general  purpose  to  elevate  and 
benefit  the  native  Africans  as  declared  in  the  Berlin  act,  to  which  we  are,  how- 
ever, not  a  party,  and  emphatically  reaffirmed  in  the  Brussels  act  of  1890,  ap- 
plicable to  all  dominion  and  control  of  civilized  nations  in  central  Africa,  to 
which  we  are  a  party.  Our  voice  and  sympathy  are  in  favor  of  the  full  accom- 
plishment of  those  declared  purposes,  and,  while  we  are  not  directly  interested 
m  the  administrative  and  financial  details  of  the  government  of  any  one  of  the 
several  districts  of  central  Africa  embraced  in  the  compact  of  1890,  we  are  free, 
and,  indeed,  morally  constrained,  to  express  our  trust  and  hope  that  every  suc- 
cessive step  taken  by  the  active  signatories  will  inure  to  the  well-being  of  the 
native  races  and  execute  the  transcendent  obligations  of  the  Brussels  act,  in 
all  its  humanitarian  prescription,  especially  as  to  article  2.  In  these  respects 
the  interests  of  all  the  signatories  are  identical.     (lb.,  p.  829.) 

In  a  letter  from  Secretary  of  State  Root  to  the  Belgian  minister 
at  Washington,  dated  January  11,  1909,  the  United  States  stated 
that  it  held  itself  bound  by  article  2  of  the  Brussels  African  act  to 
assure  a  proper  guardianship  of  the  aborigines  by  the  States  exercis- 
ing sovereignty  within  the  zone  covered  by  that  act  and  requested. an 
acknowledgment  by  Belgium  of  its  obligation  under  this  act  and  of  its 
intention  to  fulfil  the  obligation.  (Foreign  Relations  of  the  United 
States,  1909,  p.  400.) 

On  June  12,  1909,  a  memorandum  of  the  Belgian  Government  was 
handed  by  the  Belgian  minister  to  the  Secretary  of  State,  stating 
that  Belgium  had  never  questioned  this  obligation.  (76.,  pp.  409, 
410.) 

During  the  progress  of  the  negotiations  in  1907  and  1908  whereby 
Belgium  took  over  the  Congo  State  as  a  colony,  as  well  as  during 
the  progress  of  the  negotiations  of  1909  concerning  the  methods  to  be 


186       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

adopted  by  Belgium  for  carrying  out  its  obligations  toward  the 
natives,  the  United  States  insisted  upon  this  interpretation  of  its 
rights  and  duties  under  the  Brussels  act,  and  the  interpretation  was 
acquiesced  in  by  Belgium  and  Great  Britain  and  was  apparently  not 
questioned  by  other  powers.  {Cf.  Foreign  Relations  of  the  United 
States,  1907, V-  2,  pp.  791,  829;  ^7;.,  1908,  pp.  536-593;  ih,,  1909,  pp. 
400-414 ;  also  Sen.  Doc.  No.  143,  61st  Cong.,  1st  sess..  Affairs  of  the 
Congo,  pp.  16,  46,  182,  202.) 

The  international  opium  conference,  convoked  by  the  United 
States,  which  met  at  The  Hague  in  1911  and  1912,  adopted,  on  Janu- 
ary 23,  1912,  an  international  opium  convention,  regulating  inter- 
national commerce  in  opium  and  its  preparations,  as  well  for  the 
civilized  States  "  as  for  their  possessions,  colonies,  protectorates,  and 
leased  territories;"  thus  protecting  the  aboriginal  populations,  as 
well  as  other  persons. 


CHAPTER  XIV. 

THE  DOCTRINE  OF  "  INTERVENTION  FOR  HUMANITY  "  AND  ITS  EFFECT  ON 
THE  DEVELOPMENT  OF  THE  LAW  OF  NATIONS  REGARDING  ABORIGINES. 

The  growing  practice  of  "  intervention  "  by  civilized  States,  indi- 
vidually and  collectively,  in  the  internal  and  external  affairs  of  the 
so-called  "  minor "  or  "  semicivilized "  States,  the  absence  of  any 
recognized  rules  of  the  law  of  nations  and  the  general  conviction  that 
some  interventions  were  necessary  to  hold  together  human  society 
and  hence  must  be  rightful  under  the  law  of  nations,  led  to  a  con- 
sideration by  scholars,  during  the  latter  part  of  the  last  century,  of 
the  standards  and  principles  whicli  ought  to  be  applied  in  any  given 
case  of  "  intervention  "  to  determine  whether  the  act  was  rightful  or 
wrongful  under  the  law  of  nations. 

In  the  year  1876,  Egide  R.  N.  Arntz,  a  German  publicist  resident 
in  Belgium  (quoted  by  Gustave  Rolin-Jacquemyns,  a  Belgian  pub- 
licist, in  an  article  by  the  latter  in  the  Revue  de  Droit  International 
et  de  Legislation  Cam'paree^  vol.  7,  p.  673)  made  the  following  state- 
ment of  doctrine : 

When  a  Government,  though  acting  within  the  limits  of  its  rights  of  sov- 
ereignty, violates  the  rights  of  humanity,  either  by  nieasures  contrary  to  the 
interests  of  other  States  or  by  excesses  of  injustice  and  cruelty  which  deeply 
injure  our  morality  and  our  civilization,  the  right  of  intervention  is  lawful. 
For,  however  much  to  be  respected  may  be  the  rights  of  sovereignty,  there  is 
something  yet  more  to  be  respected,  namely,  the  right  of  humanity  or  the  right 
of  the  human  society,  which  ought  not  to  be  outraged.  Just  as  in  the  State  the 
liberty  of  the  individual  ought  to  be  restricted  and  is  restricted  by  the  law  and 
customs  of  society,  so  the  individual  liberty  of  States  ought  to  be  restricted  by 
the  laws  of  the  human  society. 

The  proposition  thus  formulated  by  Arntz  was  but  the  summing 
up  of  the  conclusions  reached  by  the  liberal  publicists  of  the  period, 
among  the  most  brilliant  of  whom  were  Bluntschli  in  Germany  and 
Lorimer  in  Great  Britain,  who  were  themselves  inspired  by  the 
humanitarian  aspect  impressed  upon  the  Civil  War  in  the  United 
States  by  the  genius  of  Lincoln. 

This  doctrine  of  the  right  of  intervention  for  humanity  necessarily 
divided  all  kinds  of  interventions  into  two  kinds — interventions  for 
humanity,  which  were  rightful  under  the  law  of  nations  when 
effected  under  conditions  and  circumstances  guaranteeing  their  hu- 
manitarian character  and  effect,  and  all  other  interventions,  which 
were  wrongful  under  the  law  of  nations.     To  give  the  doctrine  a 

187 


188       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

practical  form,  so  that  it  might  become  a  working  basis  for  the  social 
relations  of  the  States  and  countries  constituting  the  whole  society 
of  nations,  it  was  necessary  for  the  States  forming  the  society  of 
civilized  States  to  recognize  the  existence  of  this  supreme  "  law  of 
human  society,"  to  determine  its  fundamental  principles  by  applying 
analogies  drawn  from  the  private  law  concerning  the  social  relations 
of  individuals,  and  from  the  public  law  concerning  the  social  rela- 
tions of  States  already  recognized  and  in  force,  and  to  derive  from 
these  fundamental  principles  the  necessary  subsidiary  principles  to 
facilitate  and  assure  the  practical  observance  of  the  fundamental 
principles. 

In  an  essay  written  in  1910,  when  the  question  was  raised  whether 
France  and  Spain  could  legally  intervene  in  the  State  of  Morocco 
and  convert  it  into  an  international  or  colonial  protectorate  of  one 
or  both  of  them,  under  a  "  law  of  humanity  "  superior  in  obligation 
to  the  international  act  of  Algeciras,  a  study  was  made  of  this  doc- 
trine by  a  French  publicist,  Antoine  Rougier.  In  this  essay  {La 
TheoHe  de  V Intervention  cPHumanite^  in  the  Revue  GemraZe  de 
Droit  International  Public^  vol.  17,  pp.  468-526)  he  said  (p.  472)  : 

The  theory  of  the  intervention  for  humanity  is  properly  that  which  recog- 
nizes as  a  right  the  exercise  of  an  international  control  by  a  State  over  acts 
of  internal  sovereignty  of  another  State  as  being  "  contrary  to  the  laws  of 
humanity,"  and  which  justifies  this  control  as  a  means  of  organizing  in  a 
juridical  manner  the  functions  of  the  State  so  controlled.  According  to  this  doc- 
trine, whenever  the  "  human  rights "  of  a  people  are  persistently  ignored  by 
those  who  govern  it,  a  State  or  a  group  of  States  may  intervene  in  the  name 
of  the  society  of  nations,  either  to  require  the  annulment  of  the  acts  of  public 
power  which  are  the  subject  of  criticism  or  to  prevent  in  the  future  a  renewal 
of  such  acts,  or  in  case  the  government  is  inert,  to  substitute  teaiporarily  its 
or  their  sovereignty  in  place  of  the  sovereignty  of  the  State  controlled  and 
take  such  measures  of  conservation  as  are  urgently  needful. 

This  supreme  law,  which  by  some  publicists  had  been  called  "  the 
law  of  human  solidarity"  or  "the  law  of  humanity,"  but  which 
Rougier  preferred  to  call  "the  human  law"  {le  droit  humain)^  he 
described  as  follows  (pp.  491,  494)  : 

The  peoples  live  *  *  *  a  triple  social  life,  corresponding  to  a  triple  form 
of  collective  organization.  The  national  society  corresponds  to  the  juridical 
intercourse  of  individuals  grouped  politically  upon  a  unitary  territory.  The 
international  society  corresponds  to  the  juridical  intercourse  of  political 
groups  of  States  with  one  another.  The  human  society  corresponds  to  the 
juridical  intercourse  of  all  men;  of  each  with  each  and  of  each  with  all,  with- 
out distinction  arising  out  of  political  classifications.  And  as  no  society  caa 
exist  without  a  responsibility  which  conditions  its  activity — that  is,  without  a 
law  of  its  own — there  must  necessarily  be  a  national  law,  an  international  law,, 
and  a  human  law. 

If  one  compares  these  forms  of  law,  it  is  evident  that  the  human  law  is  su- 
preme over  all,  because  it  corresponds  to  the  primordial  form  of  society,  to  the 
deepest  and   most  permanent  needs  of  human  nature,  while  the  tw^o  other 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       189 

forms  correspond  to  needs  more  diverse,  more  contingent,  more  variable.  The 
Tinman  law  must,  perforce,  dominate  and  penetrate  the  national  law  and  the 
international  law,  because  the  ends  of  all  human  society  are  of  a  double  charac- 
ter ;  because,  before  it  can  satisfy  the  contingent  interests  of  its  political  groups, 
it  must  satisfy  the  human  rights  of  its  members.  It  has  a  human  mission  to 
fulfill  before  it  fulfills  its  national  and  international  missions  which  are  of  a 
less  universal  character. 

The  human  law  *  *  *  comprises  all  the  rules  which  have  as  their  charac- 
teristic to  express  or  develop  the  human  solidarity.  *  *  *  The  human 
solidarity  requires  that  all  the  activities  of  man,  whether  as  a  physical,  a 
moral,  or  a  social  being,  should  be  protected — his  life,  his  physical  and  moral 
liberty,  his  aptitude  for  social  intercourse.  The  human  law  must  guarantee 
to  individuals  the  respect  for  life,  the  respect  for  material  and  moral  liberty, 
and,  finally,  the  recognition  of  a  legal  order,  which  is  the  sip^e  qua  non  of  life 
in  society.  I  say  "  a  legal  order,"  without  defining  the  term  exactly.  Each 
particular  society  is  free  to  determine  the  legal  order  which  it  thinks  proper 
to  establish  upon  its  territory,  conformably  to  the  principles  of  the  human 
solidarity.  The  rights  which  are  derived  from  the  legal  order  established  by 
a  particular  society  are  the  political,  public,  and  civil  rights  of  the  individuals 
composing  it.  The  only  thing  which  the  human  solidarity  requires  is  that  there 
shall  exist  in  each  nation  a  legal  order  of  some  kind  regulating  the  relations  of 
the  governors  and  the  governed,  that  the  individual  shall  not  be  subjected  to  a 
regime  of  a  purely  arbitrary  character,  and  that  the  established  legal  order 
shall  not  be  arbitrarily  violated.  It  is  thus  that  the  determination  of  crimes 
punishable  by  death  belongs  to  the  legislature  of  each  nation,  but  that  the  ex- 
ecution of  a  citizen  without  judgment,  or  for  an  act  which  no  law  has  de- 
clared a  crime,  constitutes  a  violation  of  the  human  law.  The  human  law  is 
summed  up  in  the  triple  formula — the  law  of  life,  the  law  of  liberty,  the  law 
of  legality.  These  three  terms  correspond  closely  to  those  used  in  the  Declara- 
tion of  the  Rights  of  Man  and  of  the  Citizen,  of  1789 — ^liberty,  resistance  to  op- 
pression, which  corresponds  to  the  right  of  legality,  and  security — which  im- 
plies respect  for  life.    The  text  of  1789  adds  the  right  of  property. 

It  is  thus  evident  that  Rougier  identifies  ''  the  law  of  humanity  " 
with  the  fundamental  rights  of  man  recognized  in  the  preamble  of 
the  American  Declaration  of  Independence  of  1776,  when  it  asserts 
as  a  "  self-evident  truth "  that  "  governments  are  instituted  among 
men  to  secure  certain  unalienable  rights"  of  all  men,  with  which 
they  are  "  endowed  by  their  Creator,"  and  as  respects  Avhich  "  all 
men  are  created  equal,"  the  rights  thus  existing  under  this  supreme 
"  law  of  humanity  "  being,  among  others,  the  rights  of  "  life,  liberty, 
and  the  pursuit  of  happiness  "  through  legal  order. 

As  respects  the  rule  for  determining  which  of  the  States,  in  a 
particular  case,  have  the  right  to  intervene  for  humanity,  Rougier, 
in  common  Avith  all  other  pubjicists,  holds  that  a  State  in  order  to 
have  this  right  of  intervention  must,  first  of  all,  be  a  full  member 
of  the  society  of  the  civilized  States.  Those  States  which  recognize 
themselves  as  obligated  to  fulfill  the  functions  which  are  necessary 
to  the  existence  of  all  organized  society,  by  maintaining  order  and 
justice  under  a  regular  government  and  securing  the  human  rights 
of  their  inhabitants  "  form  a  community  or  society,  anciently  called 


190       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

the  community  of  the  Christian  States,  now  the  community  of  the 
civilized  States"  (p.  495).  Those  States  or  countries  which  do  not 
fulfill  these  fundamental  obligations  of  every  State — obligations 
which  "  bind  it  in  common  with  all  other  members  of  the  community 
of  the  civilized  States,  and  in  the  performance  of  which  the  whole 
international  community  is  interested,"  place  themselves  in  a  situa- 
tion of  an  exceptional  character,  which  is  thus  described  (pp.  495^ 
496)  : 

A  Government  which  fails  in  its  function  by  ignoring  the  human  interests 
of  the  governed  commits  what  may  be  called  a  perversion  of  its  sovereignty ; 
its  right  of  self-determination  no  longer  imposes  itself  In  a  sovereign  manner 
upon  third  States.  *  *  *  The  other  members  have  an  interest  in  intervening 
to  control  its  action,  and  they  have  a  right  to  intervene  by  reason  of  its  viola- 
tion of  the  human  law.  In  place  of  the  sovereignty  of  the  culpable  Govern-^ 
ment  there  is  substituted  a  foreign  sovereignty,  either  to  annul  the  jict  to  which 
the  fault  attaches  or  to  prevent  similar  defaults  from  occurring  in  the- 
future.    *     *     * 

As  respects  the  manner  and  extent  of  the  control,  there  is  this  distinction 
to  be  made ;  *  *  *  Between  two  States  equally  developed  belonging  to  a 
group  of  civilized  powers  the  control  will  be  temporary  and  occasional.  It  is- 
to  be  presumed  that  these  powers  will  perform  as  fully  as  possible  their  essen- 
tial functions,  and  that  the  fault  of  any  one  of  them  is  an  accidental  one,  which, 
it  is  only  necessary  to  point  out  in  order  to  prevent  its  repetition.    *    *    * 

When  the  violations  of  the  law  of  human  solidarity  occur  in  the  case  of  a 
barbarous  or  half-civilized  State,  in  which  the  disorders  have  a  durable  and 
permanent  character,  the  civilized  powers  must  of  necessity  have  recourse  to  a 
more  energetic  method  of  control— a  control  adapted  to  prevent  the  wrong- 
doing rather  than  to  repress  it  or  to  cause  reparation  to  be  made.  Instea<l 
of  the  right  of  ordinary  intervention  there  then  arises  the  right  of  permanent 
intervention. 

The  views  of  publicists  differ  greatly  on  the  scope  and  character 
of  the  right  of  "  intervention  for  humanity."  Most  of  them  assert 
that  it  applies  only  against  civilized  or  half -civilized  States.  On  the 
other  hand,  De  Martens  holds  that  it  is  a  right  solely  against  bar- 
barous tribes  {Traite  de  Droit  International^  §  'i''^)-  PiUet,  in  his 
article  on  Les  Droits  Fundomientaux  des  Etats^  in  the  Revue  Generals 
de  Droit  International  Public  (vol.  6,  1899,  p.  256),  regards  the  sub- 
jects of  "intervention  for  humanity,"  and  "the  mission  which  the 
civilized  nations  have  as  respects  savages,"  as  falling  outside  the 
limits  of  his  study  of  "  the  fundamental  rights  of  States,"  because  in 
these  activities  of  a  State  its  own  interests  are  not  at  stake,  it  being 
"  a  participant  in  the  common  work  of  all  nations."  {Cf.  Rougier, 
article  above  cited,  p.  482,  note;  p.  497^  note.) 

Rougier  remarks  (page  468)  that  perhaps  the  slowly  developing 
recognition  of  the  right  of  "  intervention  for  humanity  "  is  "  the  sign 
of  an  evolution  in  doctrine  toward  a  new  conception  of  international 
society,  according  to  which  the  nations,  while  remaining  strictly 
solidary  and  dependent  one  on  the  other,  will  be  grouped  under  a 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       191 

jurisdictiona]  authority,  or,  at  least,  under  a  hierarchical  power, 
charged  with  the  duty  of  assuring  to  all  of  them  respect  for  justice." 

Until  recently,  it  has  been  only  the  part  of  the  world  under  French 
influence  which  has  recognized  the  term  "  intervention  for  humanity  " 
as  a  term  of  jural  significance.  In  the  part  of  the  world  under  Brit- 
ish influence,  intervention  is  generally  considered  as  a  political  fact, 
incapable  of  being  given  a  jural  character.  In  the  part  of  the  world 
under  German  influence  the  existence  of  an  actual  organized  society 
of  nations  is  assumed  by  scholars,  and  each  civilized  state  is  regarded 
as  having  a  right  under  the  laAv  of  nations  to  extend  its  sovereignty 
to  the  extent  that  may  be  needful  and  proper  under  the  circumstances, 
"  for  the  protection  of  the  common  interests  of  the  society  of  the 
civilized  states."  This  doctrine  is  very  precisely  stated  by  von  Liszt, 
the  leading  writer  on  international  law  in  Germany.  {Das  Volker- 
recht  systeTThoMsch  clargeHteUt^  by  Franz  von  Liszt,  10th  ed.,  1915, 
pp.  175-281.) 

In  the  LTnited  States,  the  tendency  has  been  to  avoid  the  use  of  the 
word  intervention  altogether  as  implying  an  act  considered  as  hav- 
ing a  non jural  character,  and  to  speak  of  such  acts  as  extensions  of 
sovereignty  or  influence  made  in  pursuance  of  the  law  of  nations, 
which  the  United  States  has  always  recognized  as  a  part  of  its  own 
law.  The  principles  which  the  United  States  has  recognized  and 
acted  upon  as  principles  of  the  law^  of  nations  for  determining  the 
rightfulness  or  wrongfulness  of  extensions  of  national  sovereignty 
are  those  universal  principles  declared  in  the  preamble  of  the  Dec- 
laration of  Independence,  and  implied  or  expressed  in  the  Constitu- 
tion of  1787.  In  deriving  subsidiary  principles  from  these  funda- 
mental and  universal  principles,  the  United  States  has  f olloAved 
analogies  drawm  from  the  private  law  relating  to  the  formation  and 
management  of  associations  and  partnerships,  and  to  the  rights  and 
duties  attaching  to  the  relationship  of  partner  and  copartner,  tenant 
in  common  and  cotenant,  patron  and  apprentice,  and  guardian  and 
ward.  Thus  by  treating  intervention  of  strong  states  in  the  affairs 
of  weak  states  as  one  of  a  large  class  of  cases  in  w^hich  a  civilized 
state  extends  its  sovereignty  over  other  states  and  countries,  the 
United  States  is  beginning  to  substitute  in  place  of  the  idea  of  "  in- 
tervention for  humanity,"  under  a  "  law  of  humanity  "  or  a  "  law  of 
human  society,"  the  idea  of  extension  of  sovereignty  over  states  and 
countries  in  various  w^ays  and  Avith  various  effects  according  to 
recognized  principles  of  the  law  of  nations;  the  division  of  the  law 
of  nations  thus  placed  in  process  of  formulation  so  as  to  be  sus- 
ceptible of  international  recognition  being  perhaps  properly  desig- 
nated as  the  part  concerning  social  relations,  and  corresponding  to 
that  part  of  the  private  law  which  is  classified  as  the  law  of  personal 


192       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

relations  or  the  law  of  social  and  domestic  relations.  The  law  of  all 
these  relationships  is  based  upon  the  assumption  of  their  having  a 
fiduciary  character.  Using  trusteeship  in  its  largest  sense  as  a  ge- 
neric word  to  express  all  fiduciary  relationships,  including  those  essen- 
tially of  a  personal  character,  the  basic  principle  of  this  part  of  the 
law  is  that  in  all  these  relationships  one  person  is  trustee  for  another. 

The  American  substitute  for  the  doctrine  of  "  intervention  for 
humanity  "  thus  has  the  effect  to  convert  all  acts  of  force  of  a  civilized 
State  extending  its  sovereignty  or  influence  to  another  State  or 
country,  by  consent  of  the  other  civilized  States  or  without  their  op- 
position, into  acts  institutive  of  an  international  trusteeship,  the 
terms  of  which  are  determined  by  that  part  of  the  law  of  nations 
which  concerns  the  social  and  domestic  relations  of  States  and  coun- 
tries. The  civilized  States  which  consent  to  the  extension  of  sov- 
ereignty or  intentionally  refrain  from  opposition  to  it,  resemble  the 
family  council  which  under  some  systems  of  jurisprudence  is  pro- 
vided for  as  precedent  to  the  application  of  a  court  of  equity  for  the 
appointment  of  a  guardian  for  a  minor  individual,  or  the  meeting 
of  relatives  and  creditors  which  generally  precedes  an  application  to 
a  court  of  equity  for  the  appointment  of  a  conservator  of  a  person 
incompetent  to  manage  his  own  affairs.  In  the  society  of  nations 
the  court  of  equity  being  nonexistent,  the  appointment  is  made  by 
the  meeting  of  the  civilized  States  related  to  the  incompetent  major 
or  minor  State,  or  to  the  incompetent  community,  as  neighbors  or 
creditors  or  as  professional  trustees  for  profit. 

That  a  State  is  an  artificial  personality  having  such  a  corporate 
character  in  the  law  of  nations  that  it  is  capable  of  trusteeship  under 
the  law  of  nations,  is  well  settled.  The  Supreme  Court  of  the  United 
States  has  held  that  the  United  States  itself,  as  a  legal  personality, 
may  be  a  trustee  under  the  law  of  nations;  and  that  it  has,  in  fact, 
executed  trusts  of  a  most  important  kind,  going  even  to  the  extent 
of  holding  sovereignty  in  trust  for  other  States  and  conferring  it 
upon  these  States  according  to  the  agreed  terms  and  conditions  of  the 
trust.  In  the  case  of  Shively  v.  Bowlby,  decided  in  1894  (152  U.  S., 
1,  26,  27),  the  court  thus  described  the  terms  of  one  very  important 
trust  undertaken  by  the  United  States : 

The  act  of  1783  and  the  deed  of  1784  by  which  the  State  of  Virginia,  before 
the  adoption  of  the  Constitution,  ceded  "  unto  the  United  States  in  Congress 
assembled,  for  the  benefit  of  the  [new  States  to  be  formed  in  the  Northwest 
Territory],  all  right,  title,  and  claim,  as  well  of  soil  as  jurisdiction"  to  the- 
Northwest  Territory,  and  the  similar  cession  by  the  State  of  Georgia  to  the 
United  States  in  1802  of  territory  including  great  part  of  Alabama  and  of 
Mississippi,  each  provided  that  the  territory  so  ceded  should  be  formed  into 
States,  to  be  admitted,  on  attaining  a  certain  population,  into  the  Union  (in 
the  words  of  the  Virginia  cession)  "having  the  same  rights  of  sovereignty  as 
the  other  States,"  or  (in  the  words  of  the  Ordinance  of  Congress  of  July  13, 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       193 

1787,  for  the  government  of  the  Northwest  Territory,  adopted  in  the  Georgia 
cession)  "on  an  equal  footing  with  the  original  States  in  all  respects  what- 
ever,    *     *     *." 

The  court  then  quoted  and  approved  its  decision  made  in  the  case 
of  Pollard  v,  Hagan,  3  Howard,  212,  221,  222,  decided  in  1844,  as 
follows : 

We  think  that  a  proper  examination  of  the  subject  will  show  that  the  United 
States  never  held  any  municipal  sovereignty,  jurisdiction,  or  right  of  soil,  in 
and  to  the  territory  of  which  *  *  *  any  of  the  new  States  were  formed, 
except  for  temporary  purposes,  and  to  execute  the  trusts  created  by  the  acts 
of  the  Virginia  and  Georgia  Legislatures,  and  the  deeds  of  cession  executed 
by  them  to  the  United  States,  and  the  trust  created  by  the  treaty  with  the 
French  Republic  of  the  30th  of  April,  1803,  ceding  Louisiana.  *  *  *  When 
the  United  States  accepted  the  cession  of  the  territory,  they  took  upon  them- 
selves the  trust  to  hold  the  municipal  eminent  domain  for  the  new  States, 
and  to  invest  them  with  it  to  the  same  extent  in  all  respects,  that  it  was  held 
by  the  States  ceding  the  territories. 

This  trust  was  fulfilled  by  the  United  States  in  letter  and  in 
spirit. 

It  has  been  objected  by  some  writers  that  the  doctrine  of  the  "  right 
of  intervention  for  humanity"  can  never  be  a  practical  doctrine, 
because  intervention  for  humanity  implies  disinterestedness,  and  dis- 
interestedness of  States  is  nonexistent.  This  objection  would  seem 
to  be  valid.  If,  however,  "  intervention  "  be  regarded,  according  to 
the  views  held  by  the  United  States,  as  an  extension  of  national 
sovereignty  or  influence,  the  rightfulness  or  wrongfulness  of  each  ex- 
tension of  sovereignty  or  influence  is  determined,  according  to  the 
principles  of  trusteeship,  by  the  part  of  the  law  of  nations  concern- 
ing the  social  relations  of  States  and  countries,  arid  disinterestedness 
is  not  essential.  Most  of  the  social  relations  of  men  and  States  are 
determined  by  the  interestedness  of  the  parties.  The  family  council 
in  cases  of  guardianship,  the  meeting  of  relatives  and  creditors  in. 
case  of  conservatorship,  are  meetings  of  the  parties  interested;  and 
if  they  agree  on  the  person  to  be  appointed  guardian  or  conservator, 
the  court  of  equity  having  jurisdiction  generally  confirms  the  selec- 
tion. Nor  does  it  as  a  general  rule  make  any  difference  that  the  per- 
son selected  is  interested,  even  against  the  minor  or  incompetent. 
The  court  considers  the  capacity  and  character  of  the  candidate  for 
the  office,  and  unless  there  is  active  competition  or  conflict  between 
their  business  operations,  so  as  to  place  the  candidate  under  severe 
temptation,  does  not  allow  such  considerations  to  weigh  against  an 
established  reputation  for  high  character  and  probity. 

The  United  States  has  for  a  century  recognized  itself  as  guardian 
of  the  aboriginal  tribes  under  its  sovereignty  under  the  law  of  na- 
89581—19 13 


194       THE  QUESTION  OF  ABOEIGINES  IN  THE  LAW  OF  NATIONS. 

tions.  The  question  of  disinterestedness  or  interestedness  has  never 
been  raised. 

By  some  writers  it  is  held  that  an  intervention  can  never  be  right- 
ful under  the  law  of  nations  unless  made  by  a  group  of  States  or  by 
one  State  acting  by  permission  or  request  of  a  group.  This  doctrine 
is  based  on  the  ground  that  the  participation  of  the  larger  number 
assures  the  "  disinterestedness "  which  is  essential  to  an  "  interven- 
tion for  humanity."  The  falkcy  of  this  doctrine  lies  in  assuming 
that  such  an  assembly  is  a  court  of  equity,  and  as  such  must  be  disin- 
terested. Such  a  gathering,  however,  is  not  a  court.  It  does  not 
proceed  by  the  judicial  method,  hearing  evidence  and  argument  and 
making  decision  according  to  the  principles  of  law.  The  society  of 
nations  has  not  yet  established  a  court  of  equity  to  impose  conserva- 
torship upon  incompetent  States  or  guardianship  upon  aboriginal 
tribes.  The  group  of  powers  is  always  an  interested  group,  and 
properly  so;  for  each  State  is  interested  in  the  social  relations  of  all 
and  each,  and  the  question  is  not  of  absence  of  interest,  but  of  degree 
of  interest  due  to  physical  or  spiritual  proximity.  An  international 
conference  preceding  an  extension  of  sovereignty  over  another  State 
or  country  is,  it  would  seem,  in  contemplation  of  the  law  of  nations 
under  present  conditions,  rather  to  be  regarded  as  a  family  meeting 
or  family  council,  or  a  meeting  of  relatives  and  creditors.  The  State 
which  is  appointed  by  the  meeting,  whether  by  its  free  and  deliberate 
action  or  after  contest  between  two  or  more  members  as  professional 
conservators  or  guardians  for  profit,  is,  it  would  seem,  in  contempla- 
tion of  the  law  of  nations,  the  agent  of  the  meeting.  If,  so,  the 
principles  of  the  private  law  of  agency  applicable  in  such  cases  be- 
tween individuals  are  undoubtedly  to  be  applied. 

The  State  selected  to  perform  this  highly  honorable  and  difficult 
agency  and  trusteeship  is  thus  obligated,  according  to  the  law  of 
nations,  to  observe  in  letter  and  in  spirit,  the  principles  agreed  upon 
by  the  meeting,  and,  except  so  far  as  the  agreement  confers  dis- 
cretionary powers,  to  carry  out,  precisely,  the  measures  agreed  iipon 
in  execution  of  the  principle.  If  the  State  thus,  as  agent  of  the 
meeting,  occupying  the  position  of  conservator  or  guardian,  at  any 
time  deems  unjust  the  principles  agreed  upon,  or  considers  improper 
the  measures  in  execution  of  the  principles  agreed  upon,  or  regards 
the  agreement  itself  as  having  become  obsolete,  it  is  its  duty  to  take 
the  initiative  in  having  the  agreement  amended  or  abrogated  by  a 
new  agreement  of  the  meeting;  and  on  failure  of  its  project  of 
amendment  or  abrogation  in  whole  or  in  part,  to  resign  the  agency, 
or  continue  to  exercise  it  according  to  the  terms  agreed  upon  by  the 
meeting. 


THE  QUESTION  OP  ABORIGINES  IN  THE  LAW  OE  NATIONS.       195' 

Each  of  the  States  other  than  the  one  appointed  as  agent  has,  in 
this  view  of  the  law  of  nations,  the  right  and  duty,  at  any  time  dur- 
ing the  continuance  of  the  conservatorship  when  it  may  come  to  re- 
gard the  agreement  as  based  on  principles  which  are  unjust,  or  the 
measures  agreed  upon  in  execution  as  improper,  or  may  have  reason 
to  think  that  State  appointed  as  agent  of  the  meeting  is  acting  ult7'a 
vires,  or  is  failing  to  act  according  to  obligation,  or  may  deem  the 
arrangement  obsolete  or  the  conservatorship  no  longer  necessary, 
to  take  the  initiative  in  having  the  agreement  amended,  or  having 
it  abrogated  and  a  new  agreement  substituted,  or  in  having  it  abro- 
gated altogether  so  as  to  end  the  conservatorship;  or  in  having  the 
State  which  is  agent  called  to  account  for  malfeasance  or  nonfeasance 
in  executing  the  agency. 

The  objection  to  the  doctrine  of  intervention  for  humanity  that  it 
is  based  upon  a  hypothesis  of  disinterestedness  which  in  fact  can  never 
exist  has  therefore  no  significance  as  respects  the  doctrine  of  ex- 
tension of  national  sovereignty  on  principles  of  trusteeship,  since  the' 
latter  doctrine  is  based  on  the  hypothesis  of  the  interestedness  of  all 
the  parties  concerned,  which  corresponds  with  the  actual  fact. 

It  has  been  said  that  the  doctrine  of  "  intervention  for  humanity  ^^ 
in  spite  of  the  humanitarian  purpose  of  those  who  formulated  it,  is,  in^ 
the  practice  of  nations,  used  fraudulently  and  as  a  means  of  covering 
conquest  and  exploitation  with  a  veil  of  legality.  Thus  Eougier,  at 
the  conclusion  of  the  article  above  quoted  (pp.  525,  526)  wrote  in 
1910: 

The  conclusion  which  it  seems  necessary  to  reach  from  this  study  is,  that  it 
is  practically  impossible  to  separate  the  human  motives  from  the  political 
motives  and  to  assure  the  absolute  disinterestedness  of  the  intervening  States. 
*  *  *  From  the  instant  that  the  intervening  powers  judge  their  action  to  be 
opportune,  they  regard  this  opportunity  from  the  subjective  point  of  view  of 
their  interests  for  the  moment.  *  *  *  Whenever  a  power  intervenes,  in 
the  name  of  humanity,  in  the  sphere  of  competence  of  another  power,  it  does 
nothing  else  than  oppose  its  conception  of  justice  and  social  welfare  to  that  of 
the  latter,  arid  it  supports  its  conception  by  force.  Its  action  has  a  tendency, 
as  a  matter  of  fact,  to  involve  the  State  which  is  the  object  of  the  intervention 
in  the  moral  and  social  sphere  of  influence  of  the  intervening  State,  and  to 
result  in  involving  the  former  in  the  political  sphere  of  influence  of  the  latter. 
The  intervening  State  controls  the  country  in  order  to  prepare  to  dominate  it. 
Thus  the  intervention  for  humanity  appears  as  an  ingenious  juridical  means 
of  taking  away,  little  by  little,  the  independence  of  a  State,  and  of  keeping  it 
on  a  downward  incline  toward  semi-sovereignty. 

If  the  doctrine  of  "  intervention  for  humanity  "  has  in  practice  this 
alleged  effect  of  demoting  sovereign  States  to  the  status  of  half- 
sovereign  States  (and,  by  necessary  implication,  of  demoting  half- 
sovereign  States  to  the  status  of  aboriginal  tribes),  it  would  seem 
reasonable  to  conclude  that  this  effect  is  due  to  the  inadequacy  of  the 


196       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

doctrine  itself.  No  well-founded  legal  doctrine  readily  becomes  an 
''  ingenious  juridical  means  "  by  which  an  act  recognized  to  be  morally 
wrong  becomes  legally  rightful.  Considering  interventions  of  civil- 
ized States  in  the  affairs  of  semicivilized  States  as  an  extension  of 
national  sovereignty  and  regarding  all  extensions  of  national  sov- 
ereignty as  regulated  by  that  part  of  the  law  of  nations  which  is  con- 
cerned with  the  social  relations  of  States  and  countries,  which  part  of 
the  law  is  based  upon  the  fundamental  principle  of  trusteeship,  there 
would  seem  to  be  no  possibility  of  civilized  States  legally  engaging  in 
the  work  of  demoting  any  community  from  the  status  which  it  has 
acquired  by  general  recognition.  The  trusteeship  is  for  conservation 
and  elevation  of  status.  A  conservator  or  guardian  can  find  in  the 
private  law  no  warrant  for  altering  for  the  worse  the  social  status  of 
the  incompetent  person  or  the  ward.  His  duty  is  to  alter  it,  if  pos- 
sible, for  the  better. 

When  the  United  States  extended  its  sovereignty  over  Cuba,  the 
Philippines,  and  Porto  Kico,  as  the  result  of  the  Spanish  War,  the 
public  sentiment  was  strongly  against  "  imperialism  "  and  in  favor 
of  the  doctrine  that  "  the  Constitution  follows  the  flag."  In  devel- 
oping a  conception  of  the  law  of  nations  which  should  take  account 
of  this  public  sentiment  the  American  Government  based  itself  upon 
the  conception  of  a  trusteeship  implied  in  sovereignty.  By  recog- 
nizing this  trusteeship  under  the  law  of  nations,  through  acts  of  the 
Government  declaratory  of  the  trust,  the  relationship  between  the 
United  States  and  the  countries  to  which  its  sovereignty  was  ex- 
tended was  established  as  being  social  and  not  imperial,  and  the  spirit 
of  the  Constitution  was  made  to  follow  the  flag  and  to  permeate  the 
spirit  of  the  peoples  within  whose  territories  the  flag  had  been  raised 
by  the  power  of  the  United  States  in  conformity  with  the  existing 
law  of  nations. 

The  first  act  based  on  this  fundamental  principle  of  trusteeship 
occurred  in  the  case  of  Cuba.  On  April  20,  1898,  the  day  before 
the  war  began,  Congress  made  a  declaration  of  trust  in  favor  of 
the  people  of  the  island.  In  the  preamble  it  was  asserted  that  "  the 
;abhorrent  conditions  which  have  existed  for  more  than  three  years 
in  the  island  of  Cuba,  so  near  our  own  borders,  have  shocked  the 
moral  sense  of  the  people  of  the  United  States  [and]  have  been  a 
disgrace  to  civilization."  It  was  thereupon  declared  "  that  the  peo- 
ple of  the  island  of  Cuba  are,  and  of  right  ought  to  be,  free  and 
independent."  Having  thus  recognized  Cuba  as  having  a  personality 
by  and  under  the  law  of  nations,  the  resolution  then  proceeded  to 
demand  that  Spain  "relinquish  its  authority  and  government  in 
the  island  of  Cuba"  and  to  authorize  the  President  to  use  all  need- 
ful military  and  naval  force  to  bring  about  this  relinquishment. 


THE  QUESTION  OF  ABOBIGINES  IN  THE  LAW  OF  NATIONS.       197 

It  concluded  by  declaring  a  trusteeship  on  the  part  of  the  United 
States  toward  the  people  of  Cuba,  thus  determining  its  social  rela- 
tionship to  Cuba  as  a  State^  in  the  following  words : 

The  United  States  hereby  disclaims  any  disposition  or  intention  to  exercise 
sovereignty,  jurisdiction,  or  control  over  said  island  except  for  the  pacification 
thereof,  and  asserts  its  determination,  when  that  is  accomplished,  to  leave  the 
government  and  control  of  the  island  to  its  people.  (U.  S.  St.  L.,  vol.  30,  pp.. 
738,  739.) 

The  Supreme  Court  of  the  United  States  in  the  case  of  Neely  v.. 
Henkel,  180  U.  S.,  109,  decided  in  January,  1901,  in  construing  the 
declaration  that  "  the  people  of  Cuba  are  and  of  right  ought  to  be 
free  and  independent,"  held  that  it  meant  "  that  the  Cubans  were  en- 
titled to  enjoy  *  *  *  that  measure  of  self-control  which  is  the 
inalienable  right  of  man,  protected  in  their  right  to  reap  the  exhaust- 
less  treasure  of  their  country,"  and  that  "  as  between  the  United 
States  and  Cuba  that  island  is  territory  held  in  tru^t  for  the  inhabit- 
ants of  Cuba  to  whom  it  rightfully  belongs  and  to  Avhose  exclusive 
control  it  will  be  surrendered  when  a  stable  government  shall  have 
been  established  by  their  voluntary  action." 

The  United  States  has  faithfully  performed  its  trust. 

By  the  treaty  with  Spain,  the  United  States  assured  itself  the  right 
to  determine  the  relationship  between  it  and  each  of  the  acquired 
countries  according  to  its  own  views  of  the  principles  of  the  law  of 
nations  and  its  own.  judgment  concerning  the  social  attainment  of 
each  of  them.  The  treaty  provided  that  "  the  civil  rights  and  politi- 
cal status  of  the  native  inhabitants  of  the  territories  hereby  ceded  to 
the  United  States  shall  be  determined  by  Congress."  In  the  case  of 
Downes  v.  Bidwell,  182  U.  S.,  244,  decided  in  May,  1901,  Justice  (now 
Chief  Justice)  White,  in  the  concurring  opinion  of  himself  and  Jus- 
tices Shiras  and  McKenna,  said  (p.  340)  : 

I  can  not  doubt  that  the  express  purpose  of  the  treaty  was  not  only  to  leave 
the  status  of  the  territory  to  be  determined  by  Congress,  but  to  prevent  ther 
treaty  from  operating  to  the  contrary. 

In  the  case  of  the  Philippines  the  American  Government,  as  soon 
as  its  sovereignty  of  the  archipelago  was  assured  by  the  treaty  of 
peace,  made  a  declaration  of  trust  recognizing  the  duties  under  the 
law  of  nations,  arising  by  virtue  of  the  personal  relationship  thus 
brought  about  between  it  and  the  Philippine  Islands.  In  the  procla- 
mation to  the  people  of  the  Philippine  Islands  of  April  4,  1899,  is- 
sued by  the  first  (Schurman)  Philippine  Commission  by  order  of 
the  President,  it  was  declared  that  treaty  with  Spain  for  the  cession 
to  the  United  States  of  the  sovereignty  which  Spain  formerly  pos- 
sessed and  exercised  in  the  islands  had,  "  in  accordance  with  the  law 
of  nations,  received  a  complete  and  indefeasible  consummation,'^ 
and  that  "  in  order  that  the  high  responsibilities  and  obligations  with 


198       THE  QUESTION  OF  ABOKIGINES  IN  THE  LAW  OF  NATIONS. 

which  the  United  States  has  thus  become  definitely  charged  may  be 
fulfilled  in  a  way  calculated  to  promote  the  best  interests  of  the  in- 
habitants of  the  islands,"  the  President  had  appointed  the  commis- 
sion. 

The  proclamation  then  proceeded  as  follows : 

The  aim  and  object  of  the  American  Government,  apart  from  the  fulfill- 
ment of  the  solemn  obligations  it  has  assumed  toward  the  family  of  nations  by 
the  acceptance  of  the  sovereignty  over  the  Philippine  Islands,  is  the  well-being, 
the  prosperity,  and  the  happiness  of  the  Philippine  people,  and  their  elevation 
find  advancement  to  a  position  among  the  most  civilized  peoples  of  the  world,. 

[The  President]  believes  that  this  felicity  and  perfection  of  the  Philippine 
people  is  to  be  brought  about  by  the  assurance  of  peace  and  order;  by  the 
guaranty  of  civil  and  religious  liberty ;  by  the  establishment  of  justice ;  by  the 
cultivation  of  letters,  science,  and  the  liberal  and  practical  arts;  by  the  en- 
largement of  intercourse  with  foreign  nations;  by  the  expansion  of  industrial 
pursuits,  trade,  and  commerce;  by  the  multiplication  and  improvement  of  the 
means  of  internal  communications ;  by  the  development,  with  the  aid  of  modern 
mechanical  inventions,  of  the  great  natural  resources  of  the  Archipelago;  and 
in  a  word,  by  the  uninterrupted  devotion  of  the  people  to  the  pursuit  of  those 
-useful  objects  and  the  realization  of  those  noble  ideals  which  constitute  the 
liigher  civilization  of  mankind,     *     *     * 

The  commission  emphatically  asserts  that  the  United  States  is  not  only 
■willing,  but  anxious,  to  establish  in  the  Philippine  Islands  an  enlightened 
«ystem  of  government  under  which  the  Philippine  people  may  enjoy  the  largest 
measure  of  home  rule  and  the  amplest  liberty  consonant  with  the  supreme  ends 
of  government,  and  compatible  with  those  obligations  wiiich  the  United  States 
■  lias  assumed  toward  the  civilized  nations  of  the  world. 

The  United  States  striving  earnestly  for  the  welfare  and  advancement  of  the 
inhabitants  of  the  Philippine  Islands,  there  can  be  no  real  conflict  between 
American  sovereignty  and  the  rights  and  liberties  of  the  Philippine  people. 
For,  just  as  the  United  States  stands  ready  to  furnish  armies,  navies,  and 
:all  the  infinite  resources  of  a  great  and  powerful  nation  to  maintain  and  sup- 
port  its  rightful  supremacy  over  the  Philippine  Islands,  so  it  is  even  more 
solicitous  to  spread  peace  and  happiness  among  the  Philippine  people;  to 
guarantee  them  a  rightful  freedom ;  to  protect  them  in  their  just  privileges  and 
immunities ;  to  accustom  them  to  free  self-government  in  an  ever-increasing 
measure;  and  to  encourage  them  in  those  democratic  aspirations,  sentiments, 
and  ideals  which  are  the  promise  and  potency  of  a  fruiful  national  development. 

It  is  the  expectation  of  the  commission  to  visit  the  Philippine  people  in  their 
respective  Provinces,  both  for  the  purpose  of  cultivating  a  more  intimate  ac- 
<7uaintance  and  also  with  a  view  to  ascertaining  from  enlightened  native  opinion 
what  form  or  forms  of  government  seem  best  adapted  to  the  Philippine  peoples, 
most  apt  to  conduce  to  their  highest  welfare,  and  most  conformable  to  their  cus- 
toms, traditions,  sentiments,  and  cherished  ideals.  Both  in  the  establishment 
:and  maintenance  of  government  in  the  Philippine  Islands  it  wilt  be  the  policy 
of  the  United  States  to  consult  the  views  and  wishes,  and  to  secure  the  advice, 
<:ooperation,  and  aid  of  the  Philippine  people  themselves. 

In  the  meantime  the  attention  of  the  Philippine  people  is  invited  to  certain 
regulative  principles  by  which  the  United  States  will  be  governed  in  its  rela- 
tions with  them.    The  following  are  deemed  of  cardinal  importance: 

1.  The  supremacy  of  the  United  States  must  and  will  be  enforced  throughout 
every  part  of  the  archipelago,  and  those  who  resist  it  can  accomplish  no  other 
«nd  than  their  own  ruin. 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       199 

2.  The  most  ample  liberty  of  self-government  will  be  granted  to  the  Philip- 
pine people  which  is  reconcilable  with  the  maintenance  of  a  wise,  just,  stable, 
effective,  and  economical  administration  of  public  affairs,  and  compatible  with 
the  sovereign  and  international  rights  and  obligations  of  the  United  States. 

3.  The  civil  rights  of  the  Philippine  people  will  be  guaranteed  and  protected 
to  the  fullest  extent ;  religious  freedom  assured ;  and  all  persons  shall  have  an 
equal  standing  before  the  law. 

4.  Honor,  justice,  and  friendship  forbid  the  use  of  the  Philippine  people  or 
islands  as  an  object  or  means  of  exploitation.  The  purpose  of  the  American 
Government  is  the  welfare  and  advancement  of  the  Philippine  people. 

0.  There  shall  be  guaranteed  to  the  Philippine  people  an  honest  and  effective 
civil  service,  in  which  to  the  fullest  extent  practicable,  natives  shall  be  employed. 

6.  The  collection  and  application  of  taxes  and  revenues  will  be  put  upon  a 
sound,  honest,  and  economical  basis.  Public  funds,  raised  justly  and  collected 
honestly,  will  be  applied  only  in  defraying  the  regular  and  proper  expenses  in- 
curred by  and  for  the  establishment  and  maintenance  of  the  Philippine  Govern- 
ment, and  for  such  general  improvements  as  public  interests  may  demand.  Local 
funds,  collected  for  local  purposes,  shall  not  be  diverted  to  other  ends.  With 
such  a  prudent  and  honest  fiscal  administration,  it  is  believed  that  the  needs  of 
government  will  in  a  short  time  become  compatible  with  a  considerable  re- 
duction in  taxation. 

7.  A  pure,  speedy,  and  effective  administration  of  justice  will  be  established, 
whereby  the  evils  of  delay,  corruption,  and  exploitation  will  be  effectually 
eradicated. 

8.  The  construction  of  roads,  railroads,  and  other  means  of  communication 
and  transportation,  as  well  as  other  public  works  of  manifest  advantage  to  the 
Philippine  people,  will  be  promoted. 

9.  Domestic  and  foreign  trade  and  commerce,  agriculture  and  other  industrial 
pursuits,  and  general  development  of  the  country  in  the  interests  of  its  inhabit- 
ants will  be  the  constant  objects  of  solicitude  and  fostering  care. 

10.  Effective  provision  will  be  made  for  the  establishment  of  elementary 
schools  in  which  the  children  of  the  people  shall  be  educated.  Appropriate 
facilities  will  also  be  provided  for  higher  education. 

11.  Reforms  in  all  departments  of  the  Government,  in  all  branches  of  the 
public  service,  and  in  all  corporations  closely  touching  the  common  life  of  the 
people  must  be  undertaken  without  delay  and  effected,  conformably  to  right 
and  justice,  in  a  w^ay  that  will  satisfy  the  well-founded  demands  and  the  highest 
sentiments  and  aspirations  of  the  Philippine  people. 

Such  is  the  spirit  in  which  the  United  States  comes  to  the  people  of  the  Philip- 
pine Islands.  [The  President]  has  instructed  the  commission  to  make  it  publicly 
known.     (S.  Doc,  vol.  44,  56th  Cong.,  1st  sess.',  pp.  3-5.) 

This  proclamation  was  evidently  intended  to  stand  as  a  permanent 
fundamental  constitution  and  compact,  establishing  the  terms  of  the 
trusteeship  which  the  United  States  recognized  itself  as  assuming 
under  the  law  of  nations,  as  respects  all  peoples  and  territories  over 
which  it  in  any  manner  extends  its  sovereignty.  The  acts  agreed  to 
be  done  were  recognized  as  incumbent  upon  it  because  they  were  all 
needful  in  execution  of  those  principles  of  social  relationship  which 
have  a  universal  character,  and  which  are  expressed  or  implied  in  the 
preamble  of  the  Declaration  of  Independence  and  in  the  Constitution ; 
these  principles,  by  reason  of  their  universality,  being  recognized  as 
principles  of  the  law  of  nations. 


200       THE  QUESTION"  OF  ABOBIGINES  IN"  THE  LAW  OP  NATIONS. 

The  proclamation  was,  however,  almost  wholly  an  affirmative  state- 
ment. It  contained  no  bill  of  rights  imposing  legal  limitations  by- 
way of  express  prohibition  upon  all  government  in  the  Philippine 
Islands  similar  to  those  imposed  upon  all  governments  in  the  United 
States  by  the  bills  of  rights  contained  in  the  Federal  Constitutions 
and  in  the  State  constitutions.  Such  a  bill  of  rights,  made  by  com- 
bining all  the  provisions  of  the  Federal  and  State  bills  of  rights  which 
have  a  universal  character  and  are  capable  of  universal  application, 
was  accordingly  inserted  in  the  instructions  of  April  7,  1900,  to  the 
commission  appointed  to  take  over  the  civil  government  of  the  Phil- 
ippines from  the  military  authorities,  commonly  called  the  first 
(Taft)  commission.  This  bill  of  rights  has  been  quoted  previously 
in  this  study  (pp.  40,  41).  Its  provisions  were  incorporated  almost 
literally  in  the  organic  act  of  the  Philippine  Islands  of  July  1,  1902. 
They  are  also  incorporated  in  the  new  organic  act  of  August  29, 
1916,  by  which  an  autonomous  government  for  the  Philippines  is 
established  in  preparation  for  the  ultimate  independence  of  the 
Islands,  which  the  act  promises  and  assures. 

Elihu  Root,  who  was  the  Secretary  of  War  from  1899  until  1904, 
and  thus  in  principal  charge  of  the  relations  with  these  countries  dur- 
ing the  period  when  the  American  Government  was  thus  formulat- 
ing and  applying  its  conception  of  the  true  principles  of  the  law  of 
nations  governing  such  relations,  has  recently  described  this  evolu- 
tionary action  of  the  United  States.  Speaking  particularly  with  ref- 
erence to  the  Philippine  Islands,  he  has  said : 

We  acquired  the  rights  and  undertook  the  duties  of  sovereignty.  We  declared 
a  trust  for  the  benefit  of  the  people  of  the  islands.  *  *  *  We  can  not  relieve 
ourselves  from  [the  obligations  thus  assumed]  except  in  one  way,  and  that  is 
by  carrying  our  performance  to  such  a  point  that  our  cestuis  que  trustent  will 
be  competent  to  take  care  of  themselves.  *  *  *  ^^  ^qqj^-  ^j^^  same  view  of 
rights  and  duties  when  we  became  sovereign  and  the  Filipinos  colonists  that 
we  did  in  the  time  of  the  American  Revolution  when  we  were  colonists  and 
Great  Britain  was  sovereign.  We  undertook  to  go  a  little  farther  than  other 
countries  had  gone,  and  to  make  the  first  consideration  in  our  government  of 
the  islands  the  training  of  the  inhabitants  in  the  difficult  art  of  self-government, 
so  that  they  would  as  soon  as  possible  become  competent  to  govern  themselves 
instead  of  being  governed  by  us.  Accordingly,  one  of  the  first  things  that  we 
did  was  to  send  over  teachers  by  the  shipload — thousands  of  them — and  to  es- 
tablish schools  all  over  the  islands.  And  then  we  provided  a  form  of  govern- 
ment under  which  the  Philippines  should  receive  what  may  be  called  clinical 
instruction  in  administration  and  in  the  application  of  the  principles  which  we 
consider  vital  to  free  self-government  and  we  provided  that,  step  by  step,  just 
as  rapidly  as  they  became  familiar  with  the  institutions  of  free  government 
and  capable  of  continuing  them,  the  powers  of  government  should  be  placed  in 
their  hands.  I  am  sure  that  this  view  of  suitable  treatment  of  the  Philippines, 
so  long  as  we  are  to  be  in  the  islands  at  all,  commends  itself  to  the  best  intelli- 
gence and  practical  idealism  of  the  American  people.  (The  Philippines,  to  the 
End  of  the  Military  Regime,  by  Charles  B.  Elliott,  1917,  prefatory  note  by  Elihu 
Root.)- 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.      201 

The  doctrine  of  "  the  intervention  for  humanity  "  would  thus  ap- 
pear to  have  been  a  first  step  toward  the  development  of  a  law  of 
nations,  dealing  with  the  social  relationships  of  States  and  countries. 
The  supreme  "  law  of  humanity  *'  on  which  it  was  based  was  found  to 
be  so  indefinite  as  to  be  dangerous.  Any  State,  basing  itself  on  this 
"  higher  law,"  could  hold  itself  exempt  from  all  its  conventional  obli- 
gations, even  those  of  the  most  solemn  kind  which  a  State  assumes 
by  participating  in  the  final  act  of  an  international  conference.  To 
avoid  this  danger,  publicists  sought  to  limit  this  "higher  law"  by 
defining  it  as  the  "law  of  human  solidarity";  thus  applying  the 
principles  of  the  French  law  of  partnership  and  association,  whereby 
the  partners  or  associates  are  regarded  as  mutual  trustees  and 
agents — each  for  each,  each  for  all,  all  for  each,  and  all  for  all — and 
whereby  the  unit  thus  formed  is  characterized  as  solidaire  and  the 
partners  or  associates  are  considered  to  exist,  for  the  purposes  of  the 
partnership  or  association,  in  a  relationship  of  solidarite.  This  defi- 
nition of  the  supreme  "  law  of  humanity  "  as  the  supren:ie  "  law  of 
human  solidarity,"  imported  into  the  law  of  nations  notions  which 
were  partly  social  and  partly  economic,  but  which  were  essentially 
those  of  commercial  agency.  The  notion  of  reciprocal  trusteeship 
of  a  personal  as  well  as  an  economic  character,  however,  is  a  part  of 
the  conception  of  the  relationship  of  solidarity.  By  the  application 
of  this  notion  of  reciprocal  trusteeship  of  a  personal  character,  and 
by  applying  analogies  drawn  from  the  private  law  concerning  the 
social  and  domestic  relations  of  individuals,  a  part  of  the  law  of 
nations  under  the  condition  of  peace  seems  already  to  have  been 
evolved,  which  may  perhaps  be  called  the  social  law  of  nations. 

Though  the  doctrine  of  "  intervention  for-  humanity  "  has  doubt- 
less been  abused  by  civilized  States,  in  the  same  way  that  the  doctrine 
of  the  freedom  of  the  individual  to  act  under  "  the  higher  law  "  has 
been  abused  by  individuals,  it  has  probably  served,  on  the  whole,  to 
promote  the  well-being  of  the  weaker  States,  communities,  and  in- 
dividuals. Transformed  into  the  doctrine  of  "  extension  of  national 
sovereignty  according  to  the  social  law  of  nations,"  the  doctrine  exists 
in  a  practical  and  effective  form,  and  the  possibility  of  its  abuse  is 
avoided. 


CHAPTEE  XV. 


EFFECT  OF  THIS  ACTION  ON  THE  DEVELOPMENT  OF  THE  LAW  OF  NATIONS 
REGARDING  ABORIGINES. 

The  international  action  which  has  occurred  since  1880  with  refer- 
ence to  Morocco  has  involved  the  international  consideration  of  the 
relationship  of  the  leading  civilized  States  to  Morocco  as  a  minor 
State.  The  questions  to  the  solution  of  which  this  international 
action  has  been  directed  have  thus  been  questions  arising  under  what 
has  been  called  above  the  social  law  of  nations,  which  also  governs 
the  relations  of  civilized  States  to  aboriginal  tribes.  The  principles 
recognized  and  acted  upon  in  the  international  action  concerning 
Morocco  are  therefore  to  be  examined  and  an  estimate  formed  con- 
cerning the  relationship  of  these  principles  to  the  principles  above 
laid  down  as  governing  the  relations  between  civilized  States  and  abo- 
riginal tribes.  If,  as  claimed  by  some  publicists  and  as  might  perhaps 
be  inferred  from  the  existing  situation  of  fact,  Morocco  has  by  inter- 
national action  been  demoted  from  the  status  of  an  independent  and 
sovereign,  though  minor.  State,  to  that  of  a  territory  partitioned 
into  three  districts,  two  of  which  are  colonies  of  two  of  the  major 
or  civilized  States,  and  the  third  a  district  under  international  admin- 
istration as  a  kind  of  federal  reservation  of  the  society  of  nations, 
the  case  of  Morocco,  as  a  case  of  demotion  or  reduction  of  interna- 
tional status  by  international  action,  would  be  of  great  interest  in  a 
study  of  the  law  of  nations  concerning  aborigines.  To  all  members 
of  the  society  of  nations,  a  case  of  reduction  of  international  status 
by  international  action  is  of  vital  interest.  The  principles  applied 
in  demoting  a  minor  State  would,  if  recognized  as  just  and  proper, 
be  equally  applicable  in  demoting  a  major  State.  As  aboriginal 
tribes  have  the  lowest  possible  international  status,  a  legal  process 
of  demotion,  as  applied  to  them,  whether  by  international  action 
or  otherwise,  would  seem  necessarily  to  be  a  legal  process  of  extinction. 

Therefore,  in  view  of  these  claims  of  publicists,  supported  as  it 
may  be  claimed  by  existing  political  facts,  that  Morocco  has  been 
demoted  and  partitioned  into  districts  whch  are  colonies  of  civilized 
States,  it  seems  necessary  to  consider  in  this  study  the  international 
action  concerning  Morocco  in  its  legal  aspects. 
202 


THE  QUESTION"  OF  ABORIGINES  IN  THE  LAW  OE  NATIONS.       203 

The  preliminary  question  is  to  determine  whether  consideration 
should  be  given  in  such  a  study  to  all  the  various  acts  of  civilized 
States  which  have  occurred  with  reference  to  Morocco,  especially 
those  which  have  occurred  since  the  spring  of  1904  and  which  for  10 
years  preceding  the  present  war  produced  a  condition  of  continuous 
political  tension  in  Europe  and  twice  threatened  to  produce  a  Euro- 
pean war.  These  various  acts  are  of  three  different  classes:  Acts 
done  separately  by  one  civilized  State  as  acts  of  force  or  of  military 
rule  or  of  civil  administration;  acts  having  the  form  of  treaties, 
some  public  and  some  secret,  entered  into  by  two  or  three  States  with 
each  other;  and  acts  having  the  form  of  general  acts  entered  into  by 
a  large  number  of  civilized  States  assembled  formally  or  informally 
in  international  conference.  It  seems  clear  that  in  a  study  of  the 
relationship  of  the  civilized  States  to  Morocco,  only  the  international 
acts  of  a  general  character  can  be  considered.  The  general  and 
unanimous  act  of  an  international  conference,  whether  taken  at  a 
formal  assembly  of  the  conference  or  by  unanimous  accord  through 
treaty  or  convention  entered  into  after  formal  conference  and  as 
amendatory  of  the  final  act  of  the  formal  conference,  seems  clearly 
to  be  and  is  recognized  by  all  civilized  States  as  being  an  act  of  the 
highest  dignity  and  majesty  short  of  the  unanimous  act  of  all  the 
States  of  the  world  assembled.  Such  an  act  has  the  character  of  a 
supreme  and  fundamental  compact,  or  an  act  of  supreme  legislation, 
adjudication,  or  administration,  as  compared  with  any  act  having 
the  character  of  legislation,  adjudication,  or  administration  done 
or  of  war  waged,  by  anv  one  of  the  civilized  States  which  are  mem- 
bers of  the  conference,  or  of  agreement  made  by  any  number  of  them 
less  than  all. 

If  the  above  classification  of  the  acts  of  the  civilized  States  with 
reference  to  Morocco  be  correct,  as  it  would  seem  clearly  to  be,  and 
if  it  be  the  case,  as  it  undoubtedly  is,  that  all  civilized  States  recog- 
nize the  acts  of  public  international  conferences  as  having  this  su- 
preme character  as  compared  with  the  action  of  individual  States  or 
small  groups  of  States,  the  study  of  the  question  of  the  present  legal 
social  status  of  Morocco,  and  of  the  principles  applied  by  the  civil- 
ized States  in  agreement  with  Morocco  as  establishing  this  legal 
status,  is  much  simplified.  There  are,  in  this  view,  only  three  docu- 
ments having  this  supreme  character — the  final  act  of  the  conference 
of  Madrid  of  1880;  the  final  act  of  the  conference  of  Algeciras  of 
1906;  and  the  Franco-German  convention  of  1911,  which  was  open 
to  the  adhesion  of  the  powers  signatory  of  the  Madrid  act  and  the 
Algeciras  act,  and  was  adhered  to  by  these  powers.  The  various 
treaties  relating  to  Morocco,  made  by  two  or  three  of  the  powers 
signatory  of  the  Madrid  and  Algeciras  act  with  ,each  other,  are  acts 


204       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

of  inferior  dignity  and  majesty  to  the  acts  of  the  international  con- 
ference, and  can  no  more  operate  to  change  or  in  any  way  affect  these 
acts  than  an  act  of  two  or  three  States  of  the  Union  can  change  or  in 
any  Avay  affect  the  Constitution  of  the  United  States. 

In  determining  the  legal  status  of  Morocco  and  the  principles  ap- 
plied by  the  action  of  international  conferences  in  establishing  this 
status,  the  three  acts  above  mentioned — the  Madrid  act,  the  Algeciras 
act,  and  the  amendatory  accord  of  1911  evidenced  by  the  Franco-Ger- 
man convention  of  that  year — are  to  be  construed  according  to  the 
established  legal  rules,  recognized  in  all  civilized  systems  of  juris- 
prudence, for  the  construction  of  legal  instruments.  These  are,  un- 
doubtedly, that  the  circumstances  surrounding  the  execution  of  the- 
instrument  to  be  construed  are  to  be  considered,  for  the  purpose  of 
establishing  its  general  purport  and  the  general  intention  of  the  party 
or  parties  in  making  it;  that  the  words  used  are  to  be  construed  in 
their  ordinary  and  usual  meaning,  technical  terms  having  their  tech- 
nical meaning  when  evidently  intended  to  be  used  in  their  technical 
sense,  the  intention  being  determined  by  the  general  tenor  and  pur- 
port of  the  instrument  and  the  circumstances  surrounding  its  execu- 
tion; and  that  ambiguities  of  meaning  inherent  in  the  words  used, 
as  so  construed,  are  to  be  resolved  by  construing  them  according  to 
the  probable  intention  of  the  party  or  parties  to  the  instrument  as 
determined  by  its  general  tenor  and  purport  and  in  the  light  of  the 
circumstances  surrounding  its  execution. 

The  circumstances  which  led  to  the  adoption  of  the  Madrid  act  of 
1880  by  the  international  conference  of  Madrid,  were  as  follows: 

Morocco,  ever  since  the  time,  at  least  a  century  before  1880,  when  it 
had  come  into  definite  relationship  with  the  civilized  States,  had  been 
recognized  by  them  as  a  State.  On  account  of  its  ineptitude  for  civi- 
lized social  relations,  however,  its  statehood  was  recognized  as  being 
of  the  minor  form,  in  comparison  with  that  of  the  civilized  States,  all 
of  which  had  statehood  of  the  major  form.  As  a  consequence  of  this 
minority  of  Morocco  the  civilized  States  had  demanded  and  Morocco 
had  conceded  to  each  of  12  of  the  leading  civilized  States,  by  treaty,, 
thfe  right  of  jurisdiction  over  their  own  citizens  in  Morocco.  This 
jurisdiction  was  exercised  in  behalf  of  each  State  by  its  respective 
consul  in  a  manner  determined  by  the  law  of  nations  concerning 
consular  jurisdiction  in  minor  States.  By  these  treaties,  each  of  these 
12  civilized  States  had  certain  rights  to  select  certain  native  Moroc- 
cans as  proteges  for  life,  and  to  extend  to  them  its  consular  jurisdic- 
tion. The  persons  so  selected  as  proteges  were  assumed  to  be  agents  or 
employees  of  the  citizens  of  the  States  exercising  consular  jurisdic- 
tion, though  the  matter  was  left  uncertain  by  the  treaties.  Any  of 
these  States  was  therefore  able,  without  clearly  subjecting  itself  to  a 


THE  QUESTION  OF  ABOEIGHSTES  IN  THE  LAW  OF  NATIONS.      205 

charge  of  having  broken  its  treaty,  to  convert  a  large  number  of  native 
Moroccans  into  its  subjects.  The  natives  who  were  not  proteges  came 
into  conflict  with  the  proteges.  The  States  concerned  became  involved. 
It  was  evident  that  if  the  practice  of  creating  proteges  were  carried 
sufficiently  far,  the  civilized  States,  or  some  or  one  of  them,  might, 
through  its  citizens  and  proteges  dominate  Morocco  and  convert  it  into 
a  colony  or  partition  it  into  colonies.  Moreover,  one  State,  by  a  com- 
bined process  of  commercial  penetration,  the  employment  of  native 
Moroccans,  and  the  conversion  of  them  into  its  proteges,  could  obtain 
the  dominating  commercial  influence  in  Morocco,  and  by  gradually 
extending  its  commercial  influence  could  attain  political  influence,  by 
gradually  extending  its  political  influence  could  attain  political  con- 
trol, and  by  gradually  extending  its  political  control  could  attain 
sovereignty.  The  provisions  of  the  treaties  of  Morocco  with  the  re- 
spective civilized  States,  with  reference  to  this  right  of  converting 
native  Moroccans  into  proteges,  were  not  only  obscure,  but  they  varied 
one  from  the  other.  The  situation  could  be  remedied  only  by  the 
civilized  States  being  placed  upon  a  uniform  basis  as  respects  their 
right  to  create  proteges.  In  order  to  insure  the  observation  of  this 
principle  of  uniformity  it  was  also  necessary  to  prevent  any  of  the 
civilized  States  having  relations  with  Morocco  from  making  a  more 
favorable  commercial  treaty  with  Morocco  than  the  others  had.  Un- 
less this  were  prevented,  it  would  be  possible  for  a  State  having  a 
preferential  commercial  treaty,  especially  by  taking  advantage  of  the 
obscurity  of  the  treaties  as  respects  the  right  to  create  proteges,  to 
attain  in  Morocco,  without  obstruction,  a  commercial  predominance, 
and,  by  the  gradual  pushing  process  above  described,  ultimately  to 
reduce  its  status  from  that  of  a  minor  State  to  that  of  a  colony. 

There  were  special  and  permanent  considerations  in  the  case  of 
Morocco  which  induced  the  civilized  States  having  relations  with 
that  State  to  accept  its  invitation  to  confer  with  it  concerning  the 
maintenance  of  its  status  as  a  minor  State.  These  considerations 
were  based  on  its  geographical  location  as  related  to  the  international 
processes  of  social  intercourse,  trade,  and  war.  The  territory  of  Mo- 
rocco includes  the  south  shore  of  the  narrow  Strait  of  Gibraltar, 
which  separates  western  Europe  from  western  Africa.  Through  this 
channel,  not  more  than  10  miles  wide  at  its  narrowest  point,  passes 
the  great  middle  route  for  the  sea-borne  traffic  of  the  world.  In  the 
near  future,  the  great  trunk  line  of  railroad  connecting  western 
Europe  and  western  Africa,  after  passing  through  the  continent  of 
Europe,  collecting  there  vast  burdens  of  commodities  .through  an  in- 
tricate network  of  ramifying  and  converging  lines,  will  convey  these 
riches  through  the  projected  tunnel  under  the  Strait  of  Gibraltar, 
and  in  return  will  bring  to  Europe  loads  of  commodities  collected 
from  all  part,«!  of  Africa.    The  district  lying  between  the  shore  of  the 


206       THE  QUESTIGlSr  OF  ABORIGIlSrES  IN  THE  LAW  OF  NATIONS. 

harbor  of  Tangier  and  the  Morocco  end  of  the  European- African 
Eailroad  tunnel  will  in  the  future  be  the  point  at  which  the  main  sea 
trade-route  of  the  world  will  intersect  one  of  the  greatest  of  the 
world's  trunk  lines  of  railroads.  It  must  therefore  become  a  great 
commercial  center.  The  possession  of  this  district  and  its  hinter- 
land— that  is,  of  Morocco — by  any  one  of  the  civilized  States,  would 
give  that  State  a  predominance  likely  to  cause  international  jealousy 
and  lead  to  a  general  war.  It  was  already  the  settled  policy  in 
1880  that  in  interests  of  international  order  and  peace,  the  sov- 
ereignty of  a  district  of  such  international  importance  should  be 
vested  in  a  minor  State,  and  that  the  sovereignty  of  that  State,  its 
freedom  from  partition,  and  uniformity  of  treatment  for  all  other 
States,  should  be  assured  by  formal  or  informal  international  agree- 
ment. While  there  was  a  tendency  to  regard  this  policy  as  a  "  prin- 
ciple," and  as  applicable  to  the  relations  of  all  civilized  States  to  all 
minor  States,  th6  "  policy  "  had  not  yet  become  a  "  principle  "  of  the 
law  of  nations.  The  policy — sometimes  spoken  of  as  the  "triple 
policy,"  by  reason  of  the  necessity  of  there  being  a  combination  of  all 
the  three  elements  to  accomplish  the  international  result  intended — 
was  particularly  applicable  to  Turkey  and  Morocco — to  Turkey  as 
the  holder  of  Constantinople,  the  junction-point  of  the  middle  sea 
route  of  the  world  with  the  then  projected  and  now  established  East- 
ern European- Asian- African  trunk  line  of  railroad  which  will  prob- 
ably soon  pass  under  the  Strait  of  the  Dardanelles ;  and  to  Morocco, 
as  the  holder  of  Tangier,  the  junction  point  of  the  middle  sea  route 
with  the  main  land  route,  destined  to  be  a  rslilroad  route,  connecting 
western  Europe  with  western  Africa  by  a  tunnel  under  the  Strait 
of  Gibraltar. 

The  final  act,  of  July  3,  1880,  adopted  by  the  Madrid  conference, 
recognized  and  applied  this  "  triple  policy."  The  situation  in  which 
this  policy  then  was,  evidently  made  it  impossible  for  the  conference 
to  formulate  and  declare  it  as  a  "  principle  "  of  the  law  for  nations. 
This  would  have  raised  the  question  whether  the  principle  was  ap- 
plicable generally  to  the  relationship  which  the  civilized  States,  as 
major  States,  bear  individually  and  collectively,  to  minor  States,  or 
whether  it  was  applicable  only  in  special  cases  such  as  arose  out  of 
the  situation  of  Turkey  and  Morocco. 

The  Madrid  act  was  participated  in  by  Morocco,  on  the  one  part, 
as  the  initiator  of  the  conference,  with  whom- the  powers  there  as- 
sembled were  collectively  agreeing,  and  12  major  States  collectively 
on  the  other  part.  These  States  were  Great  Britain,  France,  Ger- 
many, Russia,  Spain.  Italy.  Austria-Hungary,  Holland,  Portugal, 
Denmark,  Norway,  and  Sweden,  and  the  United  States.  All,  includ- 
ing Morocco,  united  in  a  declaration  of  the  motives  of  the  conference, 


THE  QUESTIOlsr  OF  ABORIGINES  IN  THE  LAW  OE  NATIONS.      207 

which  was  made  a  part  of  the  preamble  of  the  final  act.  It  was  de- 
clared that  they  all  "  recognized  the  necessity  of  establishing,  on  fixed 
and  uniform  bases,  the  exercise  of  the  right  of  protection  in  Morocco, 
and  of  settling  certain  questions  connected  therewith."  The  policy  of 
"  uniformity  "  of  rights  in  Morocco  of  all  other  States  and  their  citi- 
zens was  thus,  according  to  the  preamble,  the  "  basis  "  on  which  it  was 
declared  the  deliberations  of  the  conference  had  proceeded;  though 
it  was  also  declared  that  the  object  of  the  conference  was  to  apply  this 
basic  policy  of  uniformity  of  rights  only  as  respects  "  the  exercise  of 
the  right  of  protection  in  Morocco  "  and.  the  rights  of  the  civilized 
States  in  Morocco  "  connected  therewith." 

The  first  16  articles  of  the  Madrid  act  were  concerned  with  the  right 
of  protection.  The  seventeenth  (which  was  the  last  with  the  exception 
of  one  relating  to  ratification) ,  was  concerned  with  the  right  of  trade ; 
this  right  being  evidently  regarded  as  a  right  "  connected  with  "  the 
right  of  protection,  which  was  essentially  a  right  of  a  social  nature. 
The  policy  of  uniformity  was  here  again  applied  as  the  "  basis "  of 
the  common  action.    Article  17  was  as  follows : 

The  right  to  the  treatment  of  the  most  favored  nation  is  recognized  by  Morocco 
as  belonging  to  all  the  powers  represented  at  the  Madrid  conference. 

The  cautious  statement  that  this  uniform  right  exists  in  all  "  the 
powers  represented  at  the  Madrid  conference,"  and  that  the  recogni- 
tion of  this  uniform  right  is  made  "  by  Morocco"  does  not  alter  the 
fact  that  they  all  "recognized"  the  right  of  the  States  assembled, 
other  than  Morocco,  to  the  treatment  of  the  most  favored  nation  in 
Morocco  as  respects  trade.  It  seems  clear  that  they  intended  to  recog- 
nize that  the  right  was  not  a  right  granted  by  Morocco,  but  a  right 
existing  under  the  law  of  nations  in  favor  of  all  the  civilized  States 
against  Morocco  as  a  minor  State  for  the  sake  of  the  general  welfare, 
and  in  favor  of  Morocco  for  its  protection  against  extinction,  parti- 
tion, or  exploitation. 

The  Algeciras  conference  was  held  in  pursuance  of  a  program 
agreed  to  in  advance  by  Morocco  and  all  the  powers  which  had  par- 
ticipated in  the  conference  of  Madrid.  This  agreed  program  and  the 
circumstances  surrounding  its  execution  may  properly  be  considered 
in  construing  the  final  act  of  Algeciras  as  one  of  the  facts  surround- 
ing the  execution  of  that  act,  for  the  purpose  of  ascertaining  its  gen- 
er.al  meaning  and  purport.  This  program  was  formulated  on  July  8, 
1905,  by  exchange  of  notes  between  Franpe  and  Germany,  and  was  to 
be  presented  to  Morocco  and  the  12  powers  signatory  of  the  Madrid 
act  and  accepted  by  them  in  advance.  It  was  so  presented,  and  all  of 
them  accepted  the  program. 

The  program  was  necessary  to  relieve  a  situation  of  extreme  ten- 
sion in  Europe  over  Morocco.    In  1904,  Great  Britain,  France,  and 


208       THE  QUESTION  OF  ABORIGINES  IN"  THE  LAW  OF  NATIONS. 

Spain  had  asserted  special  interests  in  Morocco  by  conventions  and 
declarations  duly  published.  As  a  part  of  these  transactions,  they 
also  entered  into  conventions  which  were  not  published,  but  whose 
contents  were  the  subject  of  public  surmise  and  conjecture,  and  which 
were,  as  then  understood  and  as  later  shown,  susceptible  of  being  in- 
terpreted as  intending  the  partition  of  Morocco  into  districts,  one 
of  which  would  be  a  colony  of  France,  one  of  Spain,  and  one  an  inter- 
national district  commanded  by  the  British  fortress  of  Gibraltar. 
Germany  assumed  the  position  of  next  friend  of  Morocco,  relying 
upon  the  principles  implied  or  declared  in  the  Madrid  act,  and  in 
behalf  of  Morocco  and  of  itself  asserted  that  the  action  proposed  by 
Great  Britain,  France,  and  Spain  could  be  legally  taken  under  the 
law  of  nations,  if  at  all,  only  by  authority  of  the  final  act  of  an  inter- 
national conference  at  least  equal  in  dignity  and  majesty  with  the 
Madrid  conference.  France  at  first  asserted  the  rights  of  the  three 
nations  under  the  law  of  nations  to  act  without  authority  of  an  inter- 
national conference.  The  matter  was  finally  adjusted  by  France  ac- 
cepting Germany's  position  and  agreeing  that  the  conference  should 
be  bound  in  advance  to  the  principles  of  the  Madrid  act,  and  by  Ger- 
many accepting,  subject  to  the  permanent  observance  of  these  prin- 
ciples, the  position  of  France  that  it  had  a  "  special  interest "  in 
Morocco.  The  note  of  the  French  Government  of  July  8, 1^05,  was  as 
follows:  ' 

The  Government  of  the  [French]  Republic  is  convinced,  by  the  conver- 
sations which  have  taken  place  at  Paris  and  Berlin,  that  the  imperial  [Ger- 
man] Government  will  not  pursue  in  the  conference  proposed  by  the  Sultan  of 
Morocco,  any  object  which  will  compromise  the  legitimate  interests  of  France 
in  that  country,  or  which  may  be  contrary  to  the  rights  of  France  resulting 
from  its  treaties  or  arrangements  and  in  harmony  with  the  following  prin- 
ciples : 

Sovereignty  and  independence  of  the  Sultan; 

Integrity  of  his  Empire; 

Economic  liberty,  without  any  inequality ; 

Utility  of  reforms  of  police  and  financial  reforms,  the  introduction  of  which 
should  be  regulated,  for  a  short  period,  by  way  of  international  accord ; 

Recognition  of  the  actual  situation  of  France  with  respect  to  Morocco,  due 
to  the  contiguity,  along  a  vast  extent  of  Algeria  and  [Morocco],  and  to  the 
particular  relations  which  result  between  two  countries  which  border  on  each 
other,  as  well  as  by  the  special  interest  which  ensues  to  France  that  order 
should  reign  in  [Morocco]. 

In  consequence,  the  Government  of  the  Republic  withdraws  its  previous  ob- 
jections against  the  conference  and  agrees  to  its  being  convoked.  (French 
Yellow  Book,  Affairs  of  Morocco,  1901-1905,  pp.  251,  252. ) 

The  German  Government  immediately  replied  by  note  confirming 
the  programme  and  understanding  as  stated  in  the  French  note. 

The  conference  of  Algeciras  convened  on  January  16,  1906,  and 
after  careful  deliberation  adopted  a  final  act  on  April  7,  1906.    Like 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.      21)9 

the  Madrid  conference,  it  was  called  by  Morocco.  The  same  twelve 
major  states  participated  in  the  conference  with  Morocco.  More 
than  a  quarter  of  a  century  had  passed  since  the  Madrid  conference, 
and  the  "  triple  policy  "  had  proved  itself  to  be  a  practicable  work- 
ing principle  of  relationship  between  the  civilized  States,  individu- 
ally and  collectively,  and  the  minor  States.  The  process  of  demo- 
tion of  the  minor  States  and  the  conversion  of  them  into  colonies, 
either  directly  or  under  the  fiction  of  "colonial  protectorate,"  was 
going  on  or  had  been  completed  in  the  cases  of  Tunis,  Algeria, 
Egypt,  Korea,  and  other  less  conspicuous  cases.  The  action  of  the 
United  States  in  declaring  the  people  of  Cuba  independent,  and  the 
establishment  by  international  recognition  of  Cuba  as  a  minor  State, 
had  brought  into  public  consideration  the  question  whether  civilized 
States  ought  any  longer  to  indulge  in  the  process  of  demotion  of 
minor  States,  and  whether  the  civilized  States  did  not  have  the  duty, 
by  reason  of  their  major  status,  their  civilization  and  their  strength, 
to  conserve  and  raise  the  status  of  minor  States  and  uncivilized  tribes, 
and  to  recognize  the  statehood  of  peoples  entitled  by  their  situation 
and  attainments  to  have  this  social  status  in  the  society  of  nations. 

The  conference  of  Algeciras,  having  accepted  by  its  program  the 
"triple  principle"  as  the  basis  of  its  deliberations,  and  no  doubt 
recognizing  that  there  was  a  strong  and  growing  public  sentiment  in 
favor  of  this  chivalrous  and  Christian  conception  of  the  duties  of 
the  strong  to  the  weak,  and  itself  approving  this  conception,  made 
its  final  act  the  means  of  converting  the  traditional  "  triple  policy  "— 
which,  though  proved  to  be  satisfactory  and  workable,  was  not 
strong  enough  to  restrain  acquisitive  States — into  a  "triple  prin- 
ciple "  of  the  law  of  nations.  The  conference,  with  proper  caution, 
asserted  and  applied  the  principle  only  as  respects  Morocco,  thus 
leaving  for  future  decision  whether  the  principle  governs  the  rela- 
tions of  all  civilized  States  individually  and  collectively,  to  all  and 
each  of  the  minor  or  half-civilized  States,  or  is  applicable  only  to 
minor  States  whose  territory  is  valuable  for  trade  or  war.  This 
whole  result  was  accomplished  by  a  declaration  of  principle,  included 
in  the  declaration  of  the  motives  of  the  conference  made  in  the  pre- 
amble of  the  final  act.    The  declaration  of  motives  was  as  follows : 

[The  12  powers  and  Morocco],  inspired  by  the  interest  attaching  itself  to  the 
reign  of  order,  peace,  and  prosperity  in  Morocco,  and  recognizing  that  the  at- 
tainment tliereof  can  only  be  effected  by  means  of  the  introduction  of  the  triple 
principle  of  the  sovereignty  and  independence  of  His  Majesty  the  Sultan,  the 
integrity  of  his  domains,  and  economic  liberty  without  any  inequality,  have 
resolved,  upon  the  invitation  of  his  Shereefian  Majesty,  to  call  together  a  con- 
ference at  Algeciras  for  the  purpose  of  arriving  at  an  understanding  upon  the 
said  reforms,  as  well  as  examining  the  means  for  obtaining  the  resources 
89581—19 14 


210       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

necessary  for  their  application,  and  have  appointed  as  their  delegates  pleni- 
potentiary, etc. 

The  body  of  the  final  act  was  concerned  with  the  "  reforms  "  which 
by  the  application  of  the  "triple  principle,"  and  to  assure  its  ob- 
servance, were  deemed  needful.  The  provisions  concerning  the  re- 
forms were  classified  under  three  heads.  Those  concerning  reforms 
which  were  essentially  matters  of  internal  administration — organiza- 
tion of  a  Moroccan  state  police,  improvements  in  methods  of  assess- 
ment and  collection  of  taxes,  imposition  of  new  taxes,  improvement 
of  the  management  of  the  public  service,  and  construction  of  public 
works  through  contracts  assigned  after  competition  and  adjudica- 
tion of  merit — were  called  "  declarations,"  as  manifesting  the  inten- 
tion of  the  12  powers  to  have  the  internal  administration  continue  to 
be  in  the  name  of  the  Moroccan  Government.  The  provisions  which 
,  in  law  constituted  a  40-year  charter  of  an  international  banking  cor- 
poration, operating  under  French  law  as  the  Moroccan  State  Bank 
for  the  purpose  of  financing  the  public  operations  of  the  State,  were 
called  collectively  a  "concession."  The  provisions  concerning  re- 
forms which  were  essentially  matters  of  external  administration — 
changes  in  the  customs  laws  and  tariffs,  the  suppression  of  customs 
frauds  and  smuggling,  and  repression  of  contraband  of  arms — were 
called  "  regulations,"  as  showing  that  the  12  powers  regarded  them- 
selves as  having  a  joint  control  of  the  external  administration  with 
the  Moroccan  Government. 

The  expression  "  the  sovereignty  and  independence  of  his  Majesty 
the  Sultan,"  was  the  formal  method,  imported  into  the  public  law 
of  Europe  from  the  feudal  law,  of  acknowledging  the  independence 
of  the  people  of  Morocco  as  a  State ;  the  monarch  under  the  feudal 
system,  being  regarded  as  holding  the  sovereignty  over  the  people 
and  over  the  land  (to  use  the  words  of  the  Supreme  Court  of  the 
United  States  in  Shively  v:  Bowlby,  152  U.  S.,  1,  14),  "  as  the  repre- 
sentative of  and  in  trust  for  the  nation." 

The  general  intention  of  the  Algeciras  conference  seems  to  have 
been  to  make,  by  the  joint  action  of  the  12  powers  and  Morocco, 
a  general  declaration  of  trust,  which  should  have  the  effect  of  a 
fundamental  compact  assuring  the  independence  of  the  people  of 
Morocco  as  a  minor  State,  subject  to  an  international  easement  or 
covenant  running  with  the  land,  protecting  Morocco  against  itself 
and  against  each  of  the  major  States,  and  protecting  each  of  the 
major  States  against  each  and  all  of  the  others. 

The  only  provisions  of  the  final  act  which  recognized  France  and 
Spain  as  having  special  interests  in  Morocco  were  those  relating  to 
the  organization  of  the  Moroccan  State  police.  This  police  was  to 
be  a  body  of  Moroccans,  created  and  regulated  by  the  Moroccan  Gov- 
ernment.    Provision  was  made  for  the  Moroccan  Government  em- 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.      211 

ploying  French  and  Spanish  officers  as  instructors  for  this  police 
force;  the  commissioned  officers  serving  as  such  instructors  not  to 
exceed  20,  and  the  noncommissioned  officers  not  to  exceed  40.  A 
Swiss  officer  was  to  be  inspector  general  of  police,  reporting  to  the 
dean  of  the  diplomatic  body  at  Tangier.  Article  12  of  the  final  act 
provided  as  follows : 

The  staff  of  instructors  of  the  Shereefian  police  (officers  and  noncommis- 
sioned officers)  shall  be  Spanish  at  Tetuan,  mixed  at  Tangier,  Spanish  at 
Larache,  French  at  Rabat,  mixed  at  Casablanca,  and  French  in  the  other  three 
ports. 

This  article,  by  locating  French  instructors  at  the  military  posts 
in  the  French  zone  of  influence  and  Spanish  in  the  Spanish  zone, 
and  by  requiring  both  French  and  Spanish  officers  to  be  located  in 
the  military  posts  within  the  international  zone  of  influence  at  Tan- 
gier and  at  Casablanca  where  there  was  no  predominating  influence, 
recognized  the  French  And  Spanish  zones  of  influence,  and  gave  these 
two  States  a  legal  right  in  Morocco  of  a  preferential  character.  Dur- 
ing the  discussion  in  the  conference  on  the  organization  of  the  police^ 
Germany  proposed  that  the  conference  should  provide  an  interna- 
tional surveillance  of  a  definite  and  efficient  kind,  and  in  this  con- 
nection, on  March  8,  1906,  caused  a  declaration  to  be  made  by  its 
chief  delegate  on  this  subject.  A  translation  of  this  declaration  is 
as  follows : 

We  concur  in  the  opinions  expressed  at  the  last  session  of  the  committee, 
showing  the  necessity  of  organizing  in  Morocco  a  police  force  placed  under  the 
sovereign  authority  of  [the  Sultan  of  Morocco],  We  appreciate  the  reasons  in 
favor  of  having  recourse  to  officers  chosen  in  France  and  in  Spain  and  giving 
them  an  effective  participation  in  this  organization.  But  we  can  not  admit 
that  this  cooperation  should  be  limited  to  these  two  nations,  without  control  by 
pthers  and  without  any  guaranty  of  international  surveillance. 

It  is  evident  that  in  a  country  at  such  a  stage  of  civilization  as  Morocco  the 
exercise  of  the  only  real  force  capable  of  maintaining  order  and  guaranteeing 
the  public  security  would  give  to  the  two  powers  which  should  have  this  ex- 
clusive privilege  an  exceptional  position,  which  would  make  itself  felt  within 
the  sphere  of  national  interests  and  would  endanger  the  principle  of  economic 
liberty  for  all.  It  is  to  be  expected,  in  fact,  that  Morocco  would  fall  into  a 
condition  of  dependency  on  these  two  States  from  which  would  result  an  in- 
equality of  situation  unacceptable  to  the  other  nations. 

The  interests  of  Europe  in  Morocco  require  that  there  should  be  the  strongest 
guaranties.  To  protect  and  develop  these  common  interests  by  a  common 
action — such  is  the  principle  practiced  with  success  in  other  international  cir- 
cumstances. It  suffices  to  call  to  mind  the  results  obtained  in  Macedonia  and 
in  China  by  the  collective  efforts  of  the  powers. 

We  ask,  then,  that  in  the  organization  of  the  Moroccan  iiolice  there  should  be 
such  a  cooperation  of  the  powers  foreign  to  Morocco  as  shall  assure  to  all 
nations  equality  of  economic  treatment  and  the  policy  of  the  open  door. 

We  shall  examine  every  proposition  looking  toward  this  end,  with  the  most 
earnest  desire  to  see  the  conference  reach  an  agreement  on  this  important 
matter,  (French  Yellow  Book,  Proceedings  of  the  Conference  of  Algeciras, 
1906,  p.  185. ) 


"212        THE  QUESTION  OF  ABOEIGINES  IN  THE  LAW  OF  NATIONS. 

The  German  Government,  during  the  consideration  in  the  confer- 
ence of  the  provisions  relating  to  the  institution  of  the  Moroccan 
State  Bank,  proposed  to  have  the  administration  placed  in  the  hands 
of  a  council  of  surveillance  {Conseil  de  Surveillance) ^  a  council  of 
administration  {Conseil  3?  Administration) ^  and  a  board  of  directors 
(Directoire) .  The  council  of  surveillance  was  to  be  composed  of  the 
diplomatic  representatives  of  the  signatory  powers  at  Tangier  and  a 
delegate  appointed  by  the  Sultan  of  Morocco.  It  was  to  have  the 
general  superintending  power.  The  council  of  administration  was 
to  consist  of  two  delegates  "  from  each  of  the  States,  banks,  or  groups 
of  banks "  concerned.  (French  Yellow  Book,  Proceedings  of  the 
Conference  of  Algeciras,  p.  185.) 

The  provisions  of  the  final  act  on  this  subject  (arts.  47  to  58) 
Tested  the  ultimate  power  of  surveillance  and  control  in  four  of  the 
major  States,  the  plan  of  surveillance  adopted  being  as  follows: 
The  bank  was  located  at  Tangier,  the  headquarters  of  the  diplomatic 
body,  so  that  they  would  be  in  a  position  to  have  a  knowledge  of  its 
operations.  The  Moroccan  Government  was  given  the  right  and 
duty  of  surveillance  by  a  high  commissioner  appointed  after  agree- 
ment with  the  board  of  directors,  and  the  directors  were  controlled 
hy  meetings  of  the  shareholders.  Each  of  the  twelve  States  had  the 
option  to  become  an  equal  shareholder  with  the  rest,  and  each  State 
electing  to  participate  had  an  equal  portion  of  the  stock.  Over  all 
>vas  placed  a  body  of  four  censors ;  the  four  most  interested  powers — 
France,  Germany,  Great  Britain,  and  Spain — each  appointing  one 
censor  on  the  nomination  of  its  State  bank.  Thus  four  powers  were 
made  the  agents  of  the  conference  to  protect  the  interests  of  all  con- 
cerned as  respects  the  financing  of  Morocco. 

(For  the  Algeciras  act,  see  Treaties  and  Conventions  of  the  United 
States,  vol.  2,  pp.  2157-2183.) 

The  United  States  ratified  the  Algeciras  act,  with  a  reservation 
made  by  resolution  of  the  Senate  which  was  as  follows: 

Resolved,  That  the  Senate,  as  a  part  of  this  act  of  ratification,  understands 
that  the  participation  of  the  United  States  in  the  Algeciras  conference  and  in 
the  formation  and  adoption  of  the  general  act  and  protocol  which  resulted 
therefrom,  was  with  the  sole  purpose  of  preserving  and  increasing  its  commerce 
in  Morocco,  the  protection  as  to  life,  liberty,  and  property  of  its  citizens  re- 
siding or  traveling  therein,  and  of  aiding,  by  its  friendly  offices  and  efforts, 
in  removing  friction  and  controversy  which  seemed  to  menace  the  peace  be- 
tween powers  signatory  with  the  United  States  to  the  treaty  of  1880,  all  of 
W'hich  are  on  terms  of  amity  with  this  Government;  and  without  purpose  to 
depart  from  the  traditional  American  foreign  policy  which  forbids  participa- 
tion of  the  United  States  in  the  settlement  of  political  questions  which  are 
entirely  European  in  their  scope. 

On  February  9, 1909,  the  French  and  German  Governments  united 
in  the  following  declaration  concerning  Morocco  {NovA)eau  Recueil 
General  de  Traites^  3d  ser.,  vol.  2,  p.  30) : 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       213^ 

The  German  Imperial  Government  and  the  Government  of  the  French  Re- 
public, animated  by  an  equal  desire  to  facilitate  the  execution  of  the  act  of 
Algeciras,  are  agreed  in  defining  the  meaning  which  they  attach  to  its  pro- 
visions, with  a  view  of  avoiding  all  cause  of  misunderstanding  between  them 
in  the  future. 

In  consequence,  the  Government  of  the  French  Republic,  entirely  attached 
to  the  maintenance  of  the  integrity  and  the  independence  of  the  Shereefian 
Empire  and  resolved  to  safeguard  economic  equality  in  Morocco,  and  there- 
fore to  interpose  no  obstruction  to  the  German  commercial  and  industrial 
interests  there; 

And  the  German  Imperial  Government,  pursuing  only  economic  interests  in 
Morocco,  recognizing,  on  the  other  part,  that  the  special  political  interests  of 
France  in  Morocco  are  closely  allied  to  the  consolidation  of  the  internal  order 
and  peace,   and  having  the  fixed  intention  not  to   obstruct   these  interests; 

Hereby  declare  that  they  will  not  pursue  or  encourage  any  measure  of  a  nature 
to  create  in  their  favor,  or  in  favor  of  any  power  whatever,  any  economic 
privilege,  and  that  they  will  endeavor  to  associate  their  nationals  in  the  business 
projects  for  which  they  [their  nationals,  ceux-ci]  shall  be  able  to  obtain  the- 
concession  or  contract  [renterprise]. 

The  provisions  of  the  Algeciras  act  regarding  the  organization  of 
the  Moroccan  police  were  by  the  terms  of  the  act  to  continue  for 
only  five  years  after  its  ratification.  The  arrangement  thus  ex- 
pired on  December  31, 1911.  In  1908,  on  account  of  internal  troubles 
in  Morocco  and  on  the  ground  of  protecting  French  interests,  France 
had  sent  an  army  into  Morocco.  Later,  Spain  sent  an  army  for  the 
same  purpose  into  the  Spanish  zone  of  influence,  and  the  situation, 
was  in  fact  that  of  a  joint  military  occupation  and  a  partition  of  the 
State  into  districts  under  military  rule.  Germany,  as  next  friend" 
of  Morocco  and  as  a  member  of  the  Algeciras  conference,  objected 
to  the  situation,  claiming  it  to  be,  as  a  military  occupation  and  a 
de  fobcto  partition,  a  contravention  of  the  Algeciras  act.  This  legal 
objection  it  finally  supported  by  sending  a  small  vessel  of  war  to  the 
harbor  of  Agadir  on  the  ground  of  protecting  German  interests.  An- 
other period  of  political  tension  occurred,  which  was  brought  to  an 
end  by  an  accord  between  France  and  Germany  of  November  4,  1911^ 
which  was  open  to  the  adhesion  of  the  12  powers  signatory  of  the 
Algeciras  act.  This  accord  contained  in  the  preamble  a  declaration 
of  motives,  of  which  the  following  is  a  translation : 

The  Government  of  his  Majesty  the  Emperor  of  Germany  and.  the  Govern- 
ment of  the  French  Republic,  in  consequence  of  the  troubles  which  have 
arisen  in  Morocco  and  which  have  demonstrated  the  necessity  of  following 
out  in  the  general  interest  the  work  of  pacification  and  of  progress  provided 
for  by  the  act  of  Algeciras,  etc. 

The  first  three  articles,  relating  to  the  status  of  Morocco,  were  as 
follows : 

The  Imperial  German  Government  declares,  that,  pursuing  in  Morocco  only 
economic  interests,  it  will  not  obstruct  the  action  of  France  in  lending  its  as- 


214       THE  QUESTION  OF  ABOEIGINES  IN  THE  LAW  OF  NATIONS. 

sistance  to  the  Moroccan  Government  for  the  introduction  of  all  the  reforms — 
administrative,  judicial,  economic,  financial,  and  military — which  may  be  need- 
ful for  the  good  government  of  the  Empire ;  as  well  as  for  [establishing]  new 
regulations,  and  modifications  in  existing  regulations,  incidental  to  such  re- 
forms. In  consequence,  it  gives  its  adhesion  to  such  measures  of  reorganiza- 
tion, of  control,  and  of  financial  guaranty  as,  after  accord  with  the  Moroccan 
Government,  the  French  Government  shall  deem  it  its  duty  to  take  to  this 
end,  under  the  reserve  that  the  action  of  France  shall  safeguard  in  Morocco 
economic  equality  between  the  nations. 

In  case  France  shall  find  itself  under  the  necessity  (Fr.  serait  amende; 
Ger.  sich  veranlasst  sehen  sollte)  of  defining  and  extending  its  control  and 
protection  (Fr.  a  pr^ciser  ct  d  ^tcndre  son  controle  et  sa  protection;  Ger.  seine 
Kontrolle  und  seinen  Schutz  schdrfer  zum  Ausdruck  zu  hringen  und  auszu- 
dehnen),  the  Imperial  German  Government,  recognizing  full  liberty  of  action 
to  France  (Fr.  recmmaisant  pleine  liberty  d'  action  d  la  France;  Ger.  in  Aner- 
kennung  der  vollen  Aktiensfreiheit  Frankreichs) ,  and  under  the  reserve  that 
the  commercial  liberty  provided  for  by  previous  treaties  shall  be  maintained, 
will  interpose  no  obstacle. 

The  terms  used — "lending  of  assistance"  to  the  Moroccan  Gov- 
ernment, "  control,"  and  "  protection  " — are  all  terms  of  the  law  of 
conservatorship  and  guardianship.  They  necessarily  imply  the 
continued  independence  and  sovereignty  of  Morocco.  The  expres- 
sion "full  liberty  of  action"  as  respects  "control  and  protection" 
is  most  nearly  translated  by  the  words  "  plenary  power,"  which,  as 
above  shown,  is  an  expression  of  the  law  of  agency  and  trusteeship. 

The  accord  made  a  number  of  modifications  and  changes  in  the 
act  of  Algeciras.  There  was  no  reference  to  the  first  two  principles 
of  the  "  triple  principle  " — the  "  independence  and  sovereignty  of 
Morocco"  and  "the  integrity  of  its  domains."  By  contrast,  in 
article  4  the  third  principle  of  "economic  liberty  without  any 
inequality  "  was  expressly  affirmed  in  the  following  language : 

The  French  Government  declares  that,  being  firmly  attached  to  the  principle 
of  commercial  liberty  in  Morocco  without  any  inequality,  it  will  not  lend 
itself  to  any  inequality,  either  in  the  establishment  of  customs,  imposts,  or 
other  taxes,  or  in  the  establishment  of  tariffs  or  transportation  by  rail,  river, 
or  other  method,  and  especially  in  all  the  questions  of  transit.  The  French 
Government  will  use  its  infiuence  also  with  the  Moroccan  Government  for 
the  purpose  of  preventing  all  differential  treatment  between  the  nationals  of 
the  different  powers. 

By  article  6,  the  subsidiary  principle  of  letting  public  contracts 
by  competition  and  adjudication  was  preserved  by  the  following 
provisions : 

The  Government  of  the  Republic  obligates  itself  to  take  care  (Fr.  s'  engage 
d  veiller;  Ger.  verpflicMet  sich  zu  sorgen)  that  the  works  and  supplies  necessi- 
tated by  the  eventual  construction  of  roads,  railroads,  harbors,  telegraphs, 
etc.,  shall  be  let  on  contract  by  the  Moroccan  Government  by  the  method  ot 
adjudication.  It  binds  itself  also  to  take  care  that  the  conditions  imposed  on 
adjudications  do  not  place  the  nationals  of  any  power  in  a  situation  of 
inferiority. 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.      215 

Article  14,  relating  to  the  adhesion  of  the  other  powers,  was  as 

follows : 

The  present  accord  shall  be  communicated  to  the  other  powers  signatory  of 
the  act  of  Algeciras,  with  whom  the  two  Governments  bind  themselves  to  lend 
mutually  their  aid  for  the  purpose  of  obtaining  their  adhesion. 

(For  the  Franco-German  accord  of  Nov.  4,  1911,  see  Nouveau 
Recueil  General  de  TiNiites^  3d  ser.,  vol.  5,  pp.  643-650;  also  Brit. 
Pari.  Papers,  1912-13,  vol.  122;   (Morocco  No.  4,  1911)   Cd.  6010). 

If  there  could  be  any  question  concerning  the  legal  effect  of  these 
words  as  recognizing  the  sovereignty  and  independence  of  the  people 
of  Morocco  and  providing  for  that  State  a  temporary  conservator- 
ship which  should  be  executed  by  a  continuous  and  gradual  reduction 
in  the  intensity  of  the  control,  as  Morocco  should  improve  under  the 
conservatorship,  and  by  an  ultimate  withdrawal  of  France  from 
Morocco,  this  question  would  seem  to  be  set  at  rest  by  the  letter  of 
October  17, 1911,  addressed  by  M.  de  Selves,  French  Minister  of  For- 
eign Affairs,  to  the  Sultan  of  Morocco,  in  which  it  was  said : 

The  troubled  situation  of  the  Shereefian  Empire  during  the  last  months,  and 
the  political  events  consequent  upon  it,  have  led  the  French  and  German  Gov- 
ernments to  examine  the  conditions  under  which  the  work  of  pacification  and 
progress  contemplated  by  the  act  of  Algeciras,  and  which  interests  not  only 
the  Moroccan  Government  but  the  other  States  having  relations  with  it,  ought 
to  be  carried  on.  The  two  Governments  have  come  to  an  agreement  on  this 
subject,  which  is  set  forth  in  detail  in  the  arrangement,  the  text  of  which  I 
have  the  honor  to  send  Your  Majesty  herewith  and  which  will  later  on  be 
communicated  to  the  powers  signatory  of  the  convention  of  Algeciras.  It  has 
been  recognized  by  this  accord  that  the  collaboration  of  France  requested  by 
Morocco,  and  which  has  already  been  assured  to  Morocco  under  the  recent  and 
decisive  conditions,  responds  to  the  necessities  of  the  internal  and  external  sit- 
uation of  Morocco ;  that  it  can  not  endanger  foreign  interests ;  and  that  it  is  of 
a  nature  favorable  to  the  development  of  the  Shereefian  administration  and 
the  economic  progress  of  the  Empire. 

All  difficulty  on  this  point  being  thus  cleared  away,  the  French  Government 
will  hereafter  be  in  a  position  to  lend  its  entire  cooperation  to  the  Moroccan 
Government,  and  thus  to  put  into  effect  completely  the  previous  accords  con- 
cluded between  them  several  years  since.  It  will  bring  to  this  work  those  dis- 
positions toward  Morocco  which  are  known  to  Your  Majesty  and  which  have 
never  ceased  to  inspire  the  French  policy.  It  continues  to  be  concerned,  first 
of  all,  to  strengthen  the  authority  of  the  Moroccan  Government  {Vauiorit^ 
Makhz^nienne) ,  to  furnish  it  the  resources  of  which  it  has  need,  to  facilitate 
by  its  counsels  and  by  its  agents  the  putting  in  force  of  the  reforms  already 
decided  upon  by  Your  Majesty.  It  will  regard  it  as  its  duty,  as  respects  matters 
with  which  it  is  concerned,  to  respect  scrupulously  the  customs,  the  traditions, 
and  the  religion  of  the  Mohammedan  people.  Your  Majesty,  then,  has  no  cause 
to  doubt  the  fixed  purpose  which  the  French  Government  has  formed,  to  co- 
operate with  the  Moroccan  Government  according  to  the  sentiments  of  recip- 
rocal loyalty  and  confidence  already  manifested  by  significant  acts,  and  which 
will  equally  determine  its  conduct  toward  the  successor  whom  Your  Majesty 
shall  designate.  (Nouveau  Recueil  Gendral  de  Trait^s,  3d  ser.,  vol.  7,  pp. 
108,  109.) 


216       THE  QUESTION  OF  ABOBIGINES  IN  THE  LAW  OF  NATIONS. 

The  adhesion  of  the  United  States  to  the  Franco-German  accord 
of  1911  was  made  by  written  communication  from  the  Secretary  of 
State  (Mr.  Knox)  to  the  French  ambassador  at  Washington  (Mr. 
Jusserand),  of  December  15,  1911.  The  following  is  a  translation  of 
the  material  part  of  this  letter : 

I  have  the  honor  to  inform  your  excellency  that,  in  conformity  with  the 
traditional  foreign  policy  of  the  United  States,  which  forbids  the  participation 
of  the  Federal  Government  in  the  regulation  of  political  questions  of  a  purely 
European  order,  this  Government  is  bound  to  abstain  from  expressing  any 
opinion  for  or  against  any  of  the  provisions  of  the  Franco-German  accord  rela- 
tive to  Morocco  which  may  be  regarded  as  having  a  political  character. 

As  regards  the  desire  of  the  Government  of  the  French  Republic  to  have  the 
United  States  adhere  to  the  articles  of  this  accord  relative  to  commercial  rights 
and  the  administration  of  justice,  I  take  the  liberty  of  calling  the  attention  of 
your  excellency  to  the  fact  that  the  adhesion  of  the  United  States  as  respects 
these  articles  will  involve  a  modification  of  our  present  rights  as  these  are 
established  by  our  treaties  now  existing  with  Morocco ;  which,  under  our  Con- 
stitution, can  be  done  only  by  and  with  the  advice  and  consent  of  the  Senate 
of  the  United  States. 

I  have,  however,  the  pleasure  of  informing  your  excellency  that,  in  con- 
formity with  the  desire  expressed  by  the  French  Republic,  the  Department  of 
State  will  be  disposed,  at  any  time  when  it  may  be  convenient,  to  engage  in 
negotiations  with  a  view  to  concluding  such  new  conventional  arrangements  as 
shall  seem  proper,  for  the  purpose  of  modifying  our  rights  of  exterritoriality 
and  the  rights  of  American  proteges  in  Morocco  according  to  the  ideas  indi- 
cated in  the  Franco-German  accord ;  and,  in  a  general  way,  to  adhere  to  the 
other  principles  of  the  accord,  provided  that  the  commercial  and  other  ad- 
vantages which  are  assured  to  us  by  existing  treaties  are  maintained.  (Nou- 
veau  Recueil  General  de  Traii^s,  3d  ser.,  vol.  7,  pp.  131,  132.) 

The  treaty  between  France  and  Morocco  of  July  20,  1912,  "  for  the 
organization  of  the  French  protectorate"  in  Morocco,  as  a  treaty, 
necessarily  implied  the  independence  and  sovereignty  of  Morocco. 
(For  this  treaty  and  the  act  of  the  French  Parliament  of  July  20, 
1912,  ratifying  it  and  authorizing  its  execution,  see  Journal  du  Palais^ 
Lois  Annotees,  new  ser.,  vol.  3  (1911-1915),  p.  543.) 

The  treaty  between  France  and  Spain  of  November  27,  1912,  made 
"  for  the  purpose  of  defining  the  situation  of  France  and  Spain, 
respectively,  with  regard  to  the  Shereefian  Empire,"  made  provision 
for  Spain  taking  over  the  control  and  protection  of  the  so-called 
Spanish  zone,  and  recognized  Tangier  and  the  adjacent  region  as  an 
international  district.  {Journal  du  Palais^  Lois  Annotees,  hqw  ser., 
vol.  3  (1911-1915),  pp.  544-547.)  (For  English  translation,  see  Sup- 
plement of  American  Journal  of  International  Law,  vol.  7  (1913), 
pp.  81-93.) 

The  same  legal  terms  Avere  used  in  this  treaty  as  in  the  Franco- 
German  treaty — "lending  of  assistance"  to  the  Moroccan  Govern- 
ment, "control,"  "protection,"  "obligation  to  care  for,"  etc.     This 


THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS.       217 

treaty  did  not  purport  to  be  intended  as  amendatory  of  the  Algeciras 
act.  It  made  no  provision  for  the  adhesion  of  all  the  powers  signatory 
of  that  act.  Article  29  provided  that  "  the  present  convention  shall 
he  notified  to  the  Governments  signatory  of  the  general  act  of  Alge- 
ciras." The  assumption  of  the  parties  evidently  was  that  France  had 
the  right,  as  agent  of  the  international  conference,  by  the  terms  of  the 
Franco-German  accord  of  1911  adhered  to  by  the  signatory  powers, 
and  as  conservator  of  Morocco,  to  grant  to  Spain  the  right  to  act  as 
tiffent  of  the  conference  and  to  exercise  the  office  of  conservator 
of  Morocco  in  a  certain  district,  provided  no  one  of  the  signatory 
powers  objected  to  the  delegation  and  appointment  or  to  the  terri- 
torial partition  thus  made.  It  would  seem  that  the  personal  character 
of  such  an  agency  and  such  an  office  would  render  doubtful  the  va- 
lidity of  such  action. 

The  "triple  principle,"  of  "  the  sovereignty  and  independence  " 
of  each  State  once  recognized  as  a  State^  "  the  integrity  of  its  do- 
mains," and  "  economic  liberty  "  for  all  States  in  their  dealings  with 
the  State,  w^ithout  any  inequality,"  would  seem  to  be  a  universal 
principle  of  the  social  law  of  nations.  It- conserves  the  statehood  of 
States  having  statehood;  it  makes  for  the  recognition  as  States  of 
peoples  who  are  universally  recognized  as  entitled  to  statehood;  it 
prevents  partition  of  existing  States  without  the  consent  of  the  State 
partitioned  and  of  all  other  States;  it  prevents  the  commercial  ex- 
ploitation of  small  States  and  enables  strong  States  to  cooperate  for 
the  common  good,  instead  of  being  exposed  to  be  ruined  commer- 
cially by  unfair  competition  practiced  against  them  or  to  be  ruined 
morally  by  engaging  in  unfair  competition. 

If  this  "  triple  principle  "  is  of  a  universal  character,  it  is  espe- 
cially important  as  applied  to  the  relations  of  civilized  States  to 
aboriginal  tribes.  According  to  this  principle,  the  only  legal  pur- 
pose which  a  civilized  State  can  have  in  acquiring  sovereignty  over 
territory  inhabited  by  aboriginal  tribes  is  to  act  as  conservator  for 
them  and  to  aid  them  in  raising  their  status  as  rapidly  as  possible 
and  to  the  highest  degree  possible  for  them.  The  aborigines  have 
thus,  under  the  law  of  nations,  a  right  of  protection  and  aid  in  raising 
their  own  status.  They  are  assured  the  rights  and  privileges  of  those 
of  higher  grade  when  they  merit  elevation  to  this  grade.  These 
rights  of  aborigines  all  States  are  bound  to  observe.  Civilized  States 
can  no  longer  partition  at  will  the  territory  acquired  by  them  by 
occupation  and  inhabited  by  aboriginal  tribes,  and  no  partition  can 
legally  be  made  without  the  consent  of  the  States  concerned  and 
the  common  consent.  Exploitation  of  any  kind  attempted  against 
aborigines  is  met  and  halted  by  the  principle  of  "  economic  liberty 
without  any  inequality  " ;  and  a  legal  basis  is  established  for  pre- 
venting or  penalizing  unfair  competition. 


218       THE  QUESTION  OF  ABORIGINES  IN  THE  LAW  OF  NATIONS. 

Viewing  the  international  action  taken  by  the  twelve  powers  and 
Morocco  in  its  purely  legal  aspect,  therefore,  it  would  seem  clear 
that  this  action  was  intended  to  have  the  effect,  and  did  have  the 
legal  effect,  not  to  destroy  the  statehood  of  the  people  of  Morocco, 
or  to  demote  that  State  to  an  inferior  status,  but  to  place  the  people 
of  Morocco,  as  a  State,  under  a  temporary  and  conditional  conserva- 
torship for  the  purpose  of  reforming  the  constitution,  laws,  and 
administration  as  might  be  needful  according  to  the  joint  opinion, 
and  enabling  the  people  to  exercise  the  rights  and  fulfill  the  duties 
of  an  independent  State.  From  the  legal  standpoint,  therefore, 
there  would  seem  to  be  nothing  in  this  joint  international  action 
capable  of  being  used  as  a  precedent  unfavorable  to  the  conservation 
and  development  of  aboriginal  tribes.  The  action  of  the  Algeciras 
conference  in  formulating  and  declaring  "  the  triple  principle  "  will 
no  doubt  prove  to  be  of  great  importance  in  the  development  of  the 
law  of  nations,  as  giving  a  concrete  and  practical  interpretation  of 
the  rights  and  duties  implied  in  mutual  and  reciprocal  trusteeship. 

o 


14  DAY  USE 

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